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Indian Oxygen Ltd Vs. Their Workmen | by counsel, gives the overtime rate paid by six industrial concerns situate in Jamshedpur. Out of these six concerns, four pay overtime compensation at 1 1/2 times the ordinary wages and dearness allowance payable by them.If after taking into consideration the fact of the comparatively higher scale of wages prevailing in the appellant company, the Tribunal fixed the rate for overtime work at 1 1/4 times the ordinary rate of wages, it is impossible to say that the Tribunal, erred in doing so or acted unjustly. The companys contention, therefore as regards this demand must be rejected.15. As regards demand No. 5, counsel for the company very seriously challenged that part of the award as unjustified and contended thatan obligation to grant special leave to attend the meetings of the executive committee of the union, the meetings of the federation and the conventions of the I. N. T. U. C, over and above the various types of leave available to the companys workmen was tantamount to the company having practically to finance the administration and management of the union.He argued that imposing such an obligation on the company cannot be justified on the ground of social justice or promotion of trade unionism. Counsel or the union, on the other hand, sought to support this part of the award on the ground that such a demand was justified, as the Tribunal has observed, in the interest of a proper growth of trade union movement and the promotion of harmony in industrial relations inasmuch as if facilities are given to the workmen to conduct the administration of the union themselves, there would be less possibility of outside elements establishing their hold on the union.16. We apprehend the argument does not take into consideration certain important aspects of the demand. As aforesaid, the appellant company has been allowing those of its workmen who are the unions representatives to attend without loss of pay proceedings before conciliation officers and industrial tribunals. This is fair because conciliation proceedings are likely to get thwarted if the workmens representatives are not there to discuss the disputes and put forward their point of view before conciliation officers and wherever possible to arrive at a settlement or compromise. Over and above this facility, the workmen get various types of paid leave. As the figures of such leave are not correctly stated in the award, we collected them from counsel on both sides. The following table shows the types of leave enjoyed by the workmen: Factory Staff: Earned leave 21 Festival leave 10 Casual leave 7 Medical leave 15 53 Office Staff: Earned leave 21 Festival leave 17 Casual leave 7 Medical leave 15 60 General Staff: Earned leave 15 Festival leave 17 Casual leave 7 Medical leave 15 54 17. It is impossible to say that the leave granted by the company with full pay is not fair or even liberal. In conceding the demand of the union the Tribunal does not appear to have considered the adverse effect on the companys production if further absenteeism were to be allowed especially when the crying need of the countrys economy is more and more production and employers are exhorted to streamline their management to achieve this objective and to bring down their cost in line with international cost. In awarding this demand the Tribunal also did not specify on how many occasions the executive committee meetings of the union and other meetings would be held when the company would be obliged to give special leave with pay to the unions representatives. Similarly, there is no knowing how many delegates the union would send to attend the conventions of the federation and the I.N.T.U.C. The Tribunal could not in the very nature of things specify or limit the number of such meetings for such an attempt would amount to interference in the administration of the union and its autonomy. Its order must of necessity, therefore, have to be indefinite with the result that the appellant company would not know before hand on how many occasions and to how many of its workmen it would be called upon to grant special leave. Further, in case there are more than one union in the companys establishment, the representatives of all such unions would also have to be given such leave to attend the aforesaid meetings.18. A healthy growth of trade union movement undoubtedly would lead to industrial peace and harmony and consequently to higher efficiency. But a demand of the type we have before us has to be considered from all aspects and its implications and results have to be properly examined. In considering such a demand the first question which strikes one is as to why the meetings of the executive committee of the union cannot be held outside the hours of work.It was said that it may not be possible always to do so if an emergency arises. But emergencies are not of regular occurrence and if there be one, the representatives can certainly sacrifice one of their earned leave. There can obviously be no difficulty in so doing.The meetings of the federation and the annual conventions of the I.N.T.U.C. too can be attended by the unions delegates by availing themselves of their earned leave. Industrial adjudication, as observed in J. K. Cotton and Spinning and Weaving Mills v. Badri Mali, (1964) 3 SCR 724 = (AIR 1964 SC 737 ) cannot and should not ignore the claims of social justice, a concept based on socio-economic equality, and which endeavours to resolve conflicting claims of employers and employees by finding not a one-sided but a fair and just solution. A demand for special leave has, however, nothing to do with any disparities or inequalities, social or economic. On the other hand, too much absenteeism harms both the employers and the employees inasmuch as it saps industrial economy.In our view, the Tribunal, on the considerations aforesaid, was not justified in obliging the appellant company to grant special leave demanded by the union. | 1[ds]6.The first contention urged on behalf of the appellant company was that the Tribunal was in error in making its award operative not only to the said workmen at its Jamshedpur factory but also to workmen at its other establishments and that in doing so it acted beyond jurisdiction.In our view, this contention must be upheld.7. In the first place, the agreement by which the parties agreed to refer the said disputes for adjudication was clearly between the management of the appellant companys factory at Jamshedpur and the workmen employed in that factory and represented by their said union, the Indoxco Labour Union. The statement accompanying that agreement clearly state that the disputes agreed to be referred to were between the workmen of that factory and the management of that factory. The notification referring those disputes to the Tribunal also made it clear that the disputes referred to were those set out in the said agreement and the statement and no other disputes and further that they were the dispute between the parties to that agreement.There was no evidence before the Tribunal that similar demands were raised by workmen engaged in the appellant companys other establishments. Even assuming that the Indoxco Labour Union validly amended its constitution so as to extend its membership to the companys other workmen in its other establishments, inasmuch as the disputes referred to the Tribunal were only those set out in the said agreement and the said statement, any award made by the Tribunal in respect of those disputes must necessarily be confined to the disputes referred to it, the parties to those disputes and the parties who had agreed to refer those disputes for adjudication.8. Next, as to the claim of the Union that it had amended its constitution on January 6, 1963, and, therefore, as the workmen of the factory at Jamshedpur came henceforth to be represented by the Indian Oxygen Workers Union which represented also workmen employed in the appellant companys other establishments, the reference extended to them also and the Tribunals award would cover them also. We fail to see any connection between the purported amendment of the unions constitution and the reference made by the government on the basis of the said agreement and the said statement. These, as aforesaid, related to the disputes between the management and the workmen of the appellant companys factory at Jamshedpur who alone had made the aforesaid demands and disputes arising from those demands only were agreed to be referred to and were actually referred to the Tribunal by the said notification.There is nothing to show in that notification that other workmen of the company had raised similar demands or that there were any disputes existing or apprehended which were included in that reference.12. As regards the Tribunals finding on demand No. 3, counsel for the company raised two contentions; (i) that the companys factory at Jamshedpur having been declared an establishment under the Bihar Shops and Establishments Act, it could be made liable to pay for overtime work at the rate provided in that Act, viz. at double the ordinary rate when a workman was asked to work beyond 48 hours per week as provided therein. Therefore, the argument ran the appellant company could not be asked to pay more than its ordinary rate of wages payable to workmen if they were asked to work beyond 39 hours but not exceeding 48 hours. And (2) that the comparative statement (Ext. M) of overtime rates paid by other concerns in Jamshedpur before the Tribunal showed at if the company were made to pay 1 1/4 times its ordinary rate of wages it would, in the light of its higher scale of wages, be paying more than the other concerns.13. In our judgment, both these contentions are unsustainable. Under the conditions of service of the company, the total hours of work per week are 39 hours.Any workman asked to work beyond these hours would obviously be working overtime and the company in fairness would be expected to pay him compensation for such overtime work. The Bihar Shops and Establishments Act has no relevance to this question as that Act fixes the maximum number of hours of work allowable thereunder, i.e. 48 hours a week, and provides for double the rate of ordinary wages for work done over and above 48 hours. It is not, therefore, as if the provisions of that Act govern overtime payment payable by an employer where maximum hours of work are governed by the conditions of service prevailing in his establishment. Therefore, no reliance can be placed on the provisions of that Act for the companys contention that it can not be called upon to pay for overtime work anything more than its ordinary rate of wages if the workmen do work beyond 39 hours but not exceeding 48 hours a week. It is obvious that if the company were asked to pay at the rate equivalent to the ordinary rate of wages for work done beyond 39 hours but not exceeding 48 hours work a week, it would be paying no extra compensation at all for the work done beyond the agreed hours of work. The company would in that case be indirectly increasing the hours of work and consequently altering its conditions of service.A healthy growth of trade union movement undoubtedly would lead to industrial peace and harmony and consequently to higher efficiency. But a demand of the type we have before us has to be considered from all aspects and its implications and results have to be properly examined. In considering such a demand the first question which strikes one is as to why the meetings of the executive committee of the union cannot be held outside the hours of work.It was said that it may not be possible always to do so if an emergency arises. But emergencies are not of regular occurrence and if there be one, the representatives can certainly sacrifice one of their earned leave. There can obviously be no difficulty in so doing.The meetings of the federation and the annual conventions of the I.N.T.U.C. too can be attended by the unions delegates by availing themselves of their earned leave. | 1 | 4,128 | 1,104 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
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by counsel, gives the overtime rate paid by six industrial concerns situate in Jamshedpur. Out of these six concerns, four pay overtime compensation at 1 1/2 times the ordinary wages and dearness allowance payable by them.If after taking into consideration the fact of the comparatively higher scale of wages prevailing in the appellant company, the Tribunal fixed the rate for overtime work at 1 1/4 times the ordinary rate of wages, it is impossible to say that the Tribunal, erred in doing so or acted unjustly. The companys contention, therefore as regards this demand must be rejected.15. As regards demand No. 5, counsel for the company very seriously challenged that part of the award as unjustified and contended thatan obligation to grant special leave to attend the meetings of the executive committee of the union, the meetings of the federation and the conventions of the I. N. T. U. C, over and above the various types of leave available to the companys workmen was tantamount to the company having practically to finance the administration and management of the union.He argued that imposing such an obligation on the company cannot be justified on the ground of social justice or promotion of trade unionism. Counsel or the union, on the other hand, sought to support this part of the award on the ground that such a demand was justified, as the Tribunal has observed, in the interest of a proper growth of trade union movement and the promotion of harmony in industrial relations inasmuch as if facilities are given to the workmen to conduct the administration of the union themselves, there would be less possibility of outside elements establishing their hold on the union.16. We apprehend the argument does not take into consideration certain important aspects of the demand. As aforesaid, the appellant company has been allowing those of its workmen who are the unions representatives to attend without loss of pay proceedings before conciliation officers and industrial tribunals. This is fair because conciliation proceedings are likely to get thwarted if the workmens representatives are not there to discuss the disputes and put forward their point of view before conciliation officers and wherever possible to arrive at a settlement or compromise. Over and above this facility, the workmen get various types of paid leave. As the figures of such leave are not correctly stated in the award, we collected them from counsel on both sides. The following table shows the types of leave enjoyed by the workmen: Factory Staff: Earned leave 21 Festival leave 10 Casual leave 7 Medical leave 15 53 Office Staff: Earned leave 21 Festival leave 17 Casual leave 7 Medical leave 15 60 General Staff: Earned leave 15 Festival leave 17 Casual leave 7 Medical leave 15 54 17. It is impossible to say that the leave granted by the company with full pay is not fair or even liberal. In conceding the demand of the union the Tribunal does not appear to have considered the adverse effect on the companys production if further absenteeism were to be allowed especially when the crying need of the countrys economy is more and more production and employers are exhorted to streamline their management to achieve this objective and to bring down their cost in line with international cost. In awarding this demand the Tribunal also did not specify on how many occasions the executive committee meetings of the union and other meetings would be held when the company would be obliged to give special leave with pay to the unions representatives. Similarly, there is no knowing how many delegates the union would send to attend the conventions of the federation and the I.N.T.U.C. The Tribunal could not in the very nature of things specify or limit the number of such meetings for such an attempt would amount to interference in the administration of the union and its autonomy. Its order must of necessity, therefore, have to be indefinite with the result that the appellant company would not know before hand on how many occasions and to how many of its workmen it would be called upon to grant special leave. Further, in case there are more than one union in the companys establishment, the representatives of all such unions would also have to be given such leave to attend the aforesaid meetings.18. A healthy growth of trade union movement undoubtedly would lead to industrial peace and harmony and consequently to higher efficiency. But a demand of the type we have before us has to be considered from all aspects and its implications and results have to be properly examined. In considering such a demand the first question which strikes one is as to why the meetings of the executive committee of the union cannot be held outside the hours of work.It was said that it may not be possible always to do so if an emergency arises. But emergencies are not of regular occurrence and if there be one, the representatives can certainly sacrifice one of their earned leave. There can obviously be no difficulty in so doing.The meetings of the federation and the annual conventions of the I.N.T.U.C. too can be attended by the unions delegates by availing themselves of their earned leave. Industrial adjudication, as observed in J. K. Cotton and Spinning and Weaving Mills v. Badri Mali, (1964) 3 SCR 724 = (AIR 1964 SC 737 ) cannot and should not ignore the claims of social justice, a concept based on socio-economic equality, and which endeavours to resolve conflicting claims of employers and employees by finding not a one-sided but a fair and just solution. A demand for special leave has, however, nothing to do with any disparities or inequalities, social or economic. On the other hand, too much absenteeism harms both the employers and the employees inasmuch as it saps industrial economy.In our view, the Tribunal, on the considerations aforesaid, was not justified in obliging the appellant company to grant special leave demanded by the union.
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at its other establishments and that in doing so it acted beyond jurisdiction.In our view, this contention must be upheld.7. In the first place, the agreement by which the parties agreed to refer the said disputes for adjudication was clearly between the management of the appellant companys factory at Jamshedpur and the workmen employed in that factory and represented by their said union, the Indoxco Labour Union. The statement accompanying that agreement clearly state that the disputes agreed to be referred to were between the workmen of that factory and the management of that factory. The notification referring those disputes to the Tribunal also made it clear that the disputes referred to were those set out in the said agreement and the statement and no other disputes and further that they were the dispute between the parties to that agreement.There was no evidence before the Tribunal that similar demands were raised by workmen engaged in the appellant companys other establishments. Even assuming that the Indoxco Labour Union validly amended its constitution so as to extend its membership to the companys other workmen in its other establishments, inasmuch as the disputes referred to the Tribunal were only those set out in the said agreement and the said statement, any award made by the Tribunal in respect of those disputes must necessarily be confined to the disputes referred to it, the parties to those disputes and the parties who had agreed to refer those disputes for adjudication.8. Next, as to the claim of the Union that it had amended its constitution on January 6, 1963, and, therefore, as the workmen of the factory at Jamshedpur came henceforth to be represented by the Indian Oxygen Workers Union which represented also workmen employed in the appellant companys other establishments, the reference extended to them also and the Tribunals award would cover them also. We fail to see any connection between the purported amendment of the unions constitution and the reference made by the government on the basis of the said agreement and the said statement. These, as aforesaid, related to the disputes between the management and the workmen of the appellant companys factory at Jamshedpur who alone had made the aforesaid demands and disputes arising from those demands only were agreed to be referred to and were actually referred to the Tribunal by the said notification.There is nothing to show in that notification that other workmen of the company had raised similar demands or that there were any disputes existing or apprehended which were included in that reference.12. As regards the Tribunals finding on demand No. 3, counsel for the company raised two contentions; (i) that the companys factory at Jamshedpur having been declared an establishment under the Bihar Shops and Establishments Act, it could be made liable to pay for overtime work at the rate provided in that Act, viz. at double the ordinary rate when a workman was asked to work beyond 48 hours per week as provided therein. Therefore, the argument ran the appellant company could not be asked to pay more than its ordinary rate of wages payable to workmen if they were asked to work beyond 39 hours but not exceeding 48 hours. And (2) that the comparative statement (Ext. M) of overtime rates paid by other concerns in Jamshedpur before the Tribunal showed at if the company were made to pay 1 1/4 times its ordinary rate of wages it would, in the light of its higher scale of wages, be paying more than the other concerns.13. In our judgment, both these contentions are unsustainable. Under the conditions of service of the company, the total hours of work per week are 39 hours.Any workman asked to work beyond these hours would obviously be working overtime and the company in fairness would be expected to pay him compensation for such overtime work. The Bihar Shops and Establishments Act has no relevance to this question as that Act fixes the maximum number of hours of work allowable thereunder, i.e. 48 hours a week, and provides for double the rate of ordinary wages for work done over and above 48 hours. It is not, therefore, as if the provisions of that Act govern overtime payment payable by an employer where maximum hours of work are governed by the conditions of service prevailing in his establishment. Therefore, no reliance can be placed on the provisions of that Act for the companys contention that it can not be called upon to pay for overtime work anything more than its ordinary rate of wages if the workmen do work beyond 39 hours but not exceeding 48 hours a week. It is obvious that if the company were asked to pay at the rate equivalent to the ordinary rate of wages for work done beyond 39 hours but not exceeding 48 hours work a week, it would be paying no extra compensation at all for the work done beyond the agreed hours of work. The company would in that case be indirectly increasing the hours of work and consequently altering its conditions of service.A healthy growth of trade union movement undoubtedly would lead to industrial peace and harmony and consequently to higher efficiency. But a demand of the type we have before us has to be considered from all aspects and its implications and results have to be properly examined. In considering such a demand the first question which strikes one is as to why the meetings of the executive committee of the union cannot be held outside the hours of work.It was said that it may not be possible always to do so if an emergency arises. But emergencies are not of regular occurrence and if there be one, the representatives can certainly sacrifice one of their earned leave. There can obviously be no difficulty in so doing.The meetings of the federation and the annual conventions of the I.N.T.U.C. too can be attended by the unions delegates by availing themselves of their earned leave.
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Dr.Suhas H. Pophale of Bombay Indian Inhabitant Vs. The Oriental Insurance Company Limited & Others | been understood even by the Act of 1971, as deemed to include all assets-properties and rights, powers, privileges thereto. The Petitioner on the other hand, was claiming to have acquired right on the basis of leave and licence agreement executed i.e. on 20th December, 1972, executed after the said premises acquired the status of public premises. As a necessary corollary, the provisions of Rent Act would have no application to the said premises on the date of execution of the leave and licence agreement. Thus, the Entry of the Petitioner in the said premises, was not lawful for the purposes of the P.P. Act as no prior consent or approval of the authorised officer under the PP Act was obtained. Moreover, the said Leave and Licence agreement dated 20th December, 1972 could not have been executed without the prior approval of the person specified by the Central Government in respect of the erstwhile company as required by section 3 of the Act of 1971; and in any case the status of the Petitioner as tenant could not have been accepted by the General Manager of the erstwhile company without the prior approval of the specified person, as per the said provision.19. For the view that we have taken, the other grounds of challenge pressed into service by the Petitioner will be of no avail. Further, it is not necessary for us to examine the grievance about the correctness of the finding of the Appellate Court that the Leave and Licence agreement is invalid. Assuming that the said leave and licence agreement is legal and genuine, that would not take the matter any further for the Petitioner. Similarly, even if we were to consider other documents pressed into service on behalf of the Petitioner, for the reasons already recorded, the same will be of no avail. Inasmuch as, in law, the entry of the Petitioner in the said premises itself was unlawful, in the context of the provisions of P.P. Act. Since the provisions of P.P. Act became applicable to the said premises on and from 13th May, 1971, it is not open to the Petitioner to invoke rights arising on account of the provisions of the Bombay Rent Act. In that, the provisions of the Bombay Rent Act ceased to apply to the said premises from 13th May, 1971.20. Counsel for the Petitioner has placed reliance on the exposition of the Apex Court in the case of New India Assurance Company Ltd. V/s. Nusli Neville Wadia & Anr. reported in (2008) 3 SCC 279 , to contend that the Respondent No.1 has not adhered to the guidelines issued by the Central Government. According to the Petitioner, the action on the part of the Respondent No.1 is not fair and reasonable. In the first place, the question considered in the said decision was who should begin to lead evidence in a proceedings under the P.P. Act. Further, the principal ground for initiating proceedings in that case was of requirement of the public premises for own use and occupation and incidentally because the tenancy was already terminated. In the present case, the competent authority in the first place issued notice of termination on 12th July, 1980 against the original allottee/tenant(Mr.Erix Voller) on the ground that he had allowed user of the said premises by unauthorised persons and was not using it himself for the purpose let out to him. The original allottee/tenant allowed the said notice of termination to become final. It is only thereafter, show cause notice was issued not only to the said original allottee/tenant but also to the petitioner who was found to be in unauthorised occupation of the suit premises. The said proceedings were contested only by the Petitioner. In the present case, the Petitioner is not claiming to be allottee/tenant of the Respondent No.1. The Estate Officer after giving fair opportunity to the Petitioner has recorded finding of fact that the Petitioner was in occupation of the said premises without authority therefor. That finding of fact has been upheld by the Appellate forum, i.e., the City Civil Court. The procedure followed by the Respondent No.1 is in conformity with the requirement of the P.P. Act. It is not possible to countenance the grievance of the Petitioner either about inappropriateness in the conduct of the proceedings or of action of the Respondent No.1 in resorting to eviction of the petitioner from the said premises being arbitrary, malafide, unfair or unreasonable as such. If any other view is taken that will defeat the intent of the P.P. Act, which was to provide for a speedy machinery for eviction of unauthorized occupants of the public premises. Suffice it to observe that the decision pressed into service by the Petitioner is of no avail to the fact situation of the present case.21. To sum up, we hold that the provisions of PP Act became applicable to the said premises on and from 13th May, 1971. Further, the entry of the Petitioner and continued occupation of the suit premises is without authority therefor in the context of the provisions of the PP Act; and also not in conformity with the provisions of the Act of 1971. The leave and licence agreement dated 20th December, 1972 cannot confer higher right in the Petitioner than that of the original allottee/tenant who has suffered the notice of termination issued as back as on 12th July, 1980. Atleast on and from that date, the occupation of the original allottee/tenant and as a consequence of that the Petitioner, who was claiming through him, became unauthorised occupant and amenable to action of eviction as well as payment of damages. As mentioned earlier the question regarding damages will be reconsidered by the Estate Officer in view of the limited remand of the proceedings in terms of the impugned decision of the City Civil Court. The order of eviction as passed against the opposite parties does not suffer from any infirmity whatsoever. The same will have to be therefore upheld. | 0[ds]10. The argument of the Petitioner that the said premises did not acquire the status of public premises, within the meaning of P.P.Act, after coming into force the Act of 1971, will have to be examined keeping in mind the sweep of provisions of Act of 1971 and more importantly the definition of public premises in the P.P.Act. Section 2(e) of the P.P.Act reads thus:2. Definitions.In this Act, unless the context otherwise.......(c) .........(d) .........(e) public premises meansany premises belonging to , or taken on lease or requisitioned by, or on behalf of, the Central Government, and includes any such premises which have been placed by that Government, whether before or after the commencement of the Public Premises (Eviction) of Unauthorised Occupants) Amendment Act, 1980(61 of 1980), under the control of the Secretariat of either House of Parliament for providing residential accommodation to any member to any member of the staff of that Secretariat;(2) any premises belonging to , or taken on lease by, or on behalfany company as defined in section 3 of the Companies Act, 1956 (1 of 1956), in which not less thanper cent. Of theshare capital is held by the Central Government or any company which is a subsidiary(within the meaning of that Act) of thecompany,(ii) any corporation(not being a company as defined in section 3 of the Companies Act, 1956(1 of 1956), or a local authority) established by or under a Central Act and owned or controlled by the Central Government,(iii) any University established or incorporated by any Central Act,(iv) any Institute incorporated by the Institutes of Technology Act, 1961(59 of 1961)(v) any Board of Trustees constituted under the Major Port Trusts Act, 1963 (39 of 1963),(vi) the Bhakra Management Board constituted under section 79 of the Punjab Reorganisation Act, 1966 (31 of 1966), and that Board as and when renamed as theManagement Board under subsection (6) of section 80 of that Act,(vii) any State Government or the Government of any Union territory situated in the National Capital Territory of Delhi or in any other Union territory,(viii) any Cantonment Board constituted under the Cantonments Act, 1924(2 of 1924); and](3) in relation to the [National Capital Territory of Delhi](i) any premises belonging to the Municipal Corporation of Delhi, or any Municipal Committee or notified area committee,(ii) any premises belonging to the Delhi Development Authority, whether such premises are in the possession of , or leased out by, the said Authority,](iii) any premises belonging to, or taken on lease or requisitioned by, or on behalf of any State Government or the Government or the Government of any Union Territory;The expression belonging to has been amplified by the Division Bench of our High Court in the case of M. Mohd. Vs. Union of India and ors. Reported in AIR 1982 Bombay 443. Paragraph 22 reads thus:Assuming we are wrong in our aforesaid conclusions, we are of the view that there is no reason why the present premises should not fall within the expression belonging to the Central Government in the definition of public premises in S. 2(e) of the said Act. There is no doubt that the expression belonging to does not mean the same thing as owned by. The two expressions have two different connotations. The expression belonging to will take within its sweep not only ownership but also rights lesser than that of ownership. It must be remembered in this connection that the expressions used in the statute are to be interpreted and given meaning in the context in which they are used. The present Act has been placed on the statute book to give a summary remedy to the Government to evict persons in occupation of public premises to obviate the long ordeal of trial in a Civil Court and of further proceedings thereafter. Hence a wider meaning will have to be given to the expressions used in the Act for defining the concept of public premises. So viewed there is no reason why the premises of which possession for the time being vests in the Government and which are allotted by the Government to others while so in possession should not be held to be public premises.In AIR 1965 SC 1923 , (Mahomed Amir Ahmad Khan v. Municipal Board of Sitapur), the Supreme Court was called upon to consider the expression belonging to me used by the tenant in an application to the Compensation Officer under Act 26 of 1948 for the Rehabilitation of Refugees. While commenting upon this in para 14 of the judgment the Court observed asto revert to paragraphs 2, 5 and 8 which the learned Judges considered amounted to a clear and unequivocal denial of the Governments title, they referred in para 2 to the wordsto me as constituting a disclaimer of the tenancy and a repudiation of the landlords title. We do not agree that this is the only or proper construction which the words are capable of bearing. Though the word belonging no doubt is capable of denoting as absolute title, is nevertheless not confined to connoting that sense. Even possession of an interest less than that of full ownership could be signified by that word. In Websterto is explained as meaning inter aliabe owned by, be possession of. The precise sense which the word was meant to convey can therefore be gathered only by reading the document as a whole and adverting to the context in which it occurs. ......In Strouds Judicial Dictionary at page 269 the word belonging has been defined as to a person has two general meanings, (1) ownership, (2) the absolute right of user:A road may be said, with perfect propriety to belong to a man who has the right to use it as of right, although the soil does not belong to him.Therefore, where a person has an absolute right to user i.e. right of user even against the owner, it can be said that the property belongs to him. It must be remembered that the absolute right of user is distinct from the possessory title which a person has against the whole world except the true owner. In the present case, in the first instance there is no dispute between the landlord and the Government that the Government is the monthly tenant of the premises in question. Secondly, even under the Bombay Rent Act, by virtue of Section 4(1) thereof, the Governments tenancy is protected. Therefore, it can legitimately be held that the Government has absolute right of user of the premises in question. If this is so, then the premises can properly be said to belong to the Government. Since we have already observed that the expression belonging to does not merely include the right of ownership but also something less than and since further the premises of which the absolute right of user vests in a person can be said to belong to him, the present premises will squarely be embraced by the definition of public premises within the meaning of the said Act.We may usefully refer, in this connection, to two authorities. In (1950) 52 Bom LR 688: (AIR 1951 Bom 205 ), (Laxmipat Singhania v. LarsenTourbo Ltd.), the facts were that the plaintiff had filed a suit for eviction against the defendants who were a Company to whom a portion of the building was let out. The plaintiffs predecessor had taken on lease the land from the Port Trust for constructing the building. After constructing the building, he had let out a portion of the same to the defendants. The question was whether the building belonged to the Port Trust or to the plaintiff. If it belonged to the Port Trust the Rent Court had no jurisdiction in view of S. 4(1) of the Bombay Rent Act. While holding that the building belonged to the Plaintiff the Court observed as follows (at p. 209 ofdecisions in my opinion establish that there may be in relation to property a dual ownership for a limited period of time; and it would be possible to say in such cases that even a person who was not the absolute owner but had a right of ownership limited to that period was a person to whom the property belonged. No doubt these cases related to movable property; but I do not conceive that the principle is any different when we are dealing with immovable property. The tests as to whether for a limited period of time a temporary ownership has been created is according to the cases (1) whether there is a demise of the property, (2) whether there is full dominion and control over the property in the demisee and (3) whether the risk of the property falls on the demisee, or the absolute owner.Applying these principles to the case of a lease of land together with the building for a limited period of timeparticularly a period as long as 99 yearsit appears to me that if the lease demises the land with the building and confers on the transferee full dominion and control over the property, the transferee taking the risk of the property, then, for that limited period, the lessee is the owner of the property and the property can be said to belong to him. Ownership is nothing more than a bundle of rights in relation to property. The aggregate of rights constitutes absolute ownership. It may be that during a stated period some of these rights are vested in one person and some in others. In the case of a lessor and a lessee such as we are considering, the lessee has the right of reversion which of course is not tangible immovable property, but an intangible thing. He has also a right of reentry under the terms of the lease and he has further a right by covenant to claim the building upon termination of the lease or upon its determination in any other manner provided by lease. With regard to all other rights in the property, these vest completely in the lessee for the limited period of time. It seems to be that it is the lessee who is under the circumstances the owner qua at any rate those to whom he has let or sublet such premises. It is consistent with dual ownership that qua the lessee it may be that the lessor is the owner of the property; and in any proceedings between the lessor and the lessee it would be possible to say that the premises belonged to the lessor and not to the lessee. That is not the case before me. The case here arises between the lessee and those to whom he has let the premises. I have no doubt in my mind that qua the defendants in these two suits the premises in suit belong to the plaintiff and to nobody else so long as the lease is subsisting. That being so, those premises are not excluded from the operation of the Bombay Rents Hotel and Lodging House Rates Control Act, and this Court has therefore no jurisdiction to entertain or try either of these suits.In AIR 1977 Bom 220 (S.R.B. Kaikwad v. Union of India), what fell for consideration was the status of the Central Government as the lessee when the lease is determined and the Government becomes a statutory tenant under the Bombay Rent Act. While construing the meaning of public premises in this context, the Court observed aswhere the lease in favour of the Central Government is determined and the Central Govt. becomes a statutory tenant under the Bombay Rent Act, 1947 the premises do not cease to be public premises within the meaning of Section 2(e). The Act is not so much concerned with the title as with the possessory rights vested in the Central Government and Section 2(e) only indicates the sources by which such right to possession can be acquired, one such being, the taking of the premises on lease from its owner. The definition thus is descriptive of the source or origin of the possessory rights acquired by the Central Government. It is the continuance of the vesting of this possessory right in Government and not so much the origin thereof, that makes any premises, a public premises under the Act. The contract of lease, no doubt gives rise to the estate and interest of the lessee in the property, bare right to possession being only a part of such estate and interest. The determination of the lease, no doubt puts an end to the contract and such interest and the estate. However, provisions of the Bombay Rent Act afford some protection to the tenants against eviction and prevents such determination of lease from having its full effect. In spite of the determination of the lease and incapacity of the tenant and the landlord to enforce the terms of the contract, extenant actually happens to enjoy still, what once was the fruit and the product of the same contractual lease. In other words, the entire interest covered by the possessory right created by the contract does not come to an end with the determination of the lease but part of it, at any rate, i.e. the bare right to remain in possession still survives and is protected by the Rent Act. The right to possession acquired by the Central Government under the lease on taking the same on lease, thus continues to exist and is protected, though the lease interest and the estate comes to an end. The premises do not cease to have been taken on lease as the phraseology is merely descriptive of how the possessory right originated. The loss of contractual security, and the substitution thereof by the cover of the protection under the Rent Act does not affect, any rate, the kernel, i.e. the possessory right which also was the creature of the contractual lease. It is difficult to see how the premises cease to be public premises when in spite of the determination of the lease, possessory right created thereunder continues to be vested in the Government.The aforesaid observations reinforce the conclusion that where a person has an absolute right to user i.e. the right of user even against the owner, it can truly be said that the premises belong to such person though he is not the owner of the same. In the present case therefore, on the facts discussed earlier it can validly be held that the premises belong to the Central Government. Even assuming therefore that we are wrong in our conclusion that the premises are leased to the Central Government, the premises will be public premises within the meaning of the said Act and therefore the orders passed evicting the appellants are valid in law.11. Considering the provisions in the Act of 1971, we have no hesitation in taking the view that the same are wide enough to encompass the power of vesting of complete control of the assets and properties of the insurer(erstwhile company) in the Central Government from the appointed day(i.e. 13th May, 1971). It is true that this Act of 1971 does not transfer or vest the title in the assets of the insurer (erstwhile company), in favour of the Central Government; but nevertheless, it purports to vesting of complete control of the assets and properties of the insurer in the Central Government and to be regulated by the Custodian or with the approval of the person specified by the Central Government in that behalf in respect of the insurer, as the case may be. The primary intention of which is to protect the interests of the policy holders until the nationalisation of insurance business was to be accomplished. Indubitably, the enactment of 1971 invests some rights in the Central Government to be enforced through the specified person(s) for management of the insurer in anticipation of nationalisation of such business and incidental matters including to deal with the assets and properties of the insurer. It matters not that the said right of the Central Government in the respect of the assets and properties of the insurer were to be lesser than that of the ownership rights. As a result, by virtue of the expansive definition of public premises in section 2(e) of the P.P.Act, the said premises acquired the status of public premises within the meaning of the P.P.Act after the appointed day(i.e. 13th May, 1971) specified by the Act of 1971.12. Once the provisions of the P.P. Act became applicable to the said premises, the question of dealing with such premises in manner other than the provisions of PP Act or for that matter, the Act of 1971 would not arise. If so, the fact that a Leave and Licence Agreement was executed in favour of the Petitioner by the original tenant on 20th December, 1972 does not take the matter any further. For, the entering into such agreement was impermissible in relation to the public premises without prior approval of the Competent Authority. Moreso, no such agreement could have been executed without the prior approval of the person specified by the Central Government. No such general or special approval, as the case may be, was relied or produced before us. In absence of such approval, transaction by way of Leave and Licence agreement entered into by the Original tenant in favour of the Petitioner herein was not legal and valid and in any case was not binding on the Respondent No.1 or the erstwhile company. The letter purportedly issued under the signature of the General Manager of the erstwhile company dated 16th January, 1973 cannot legitimise the transaction. Significantly the General Manager has not referred to any approval given by the person specified by the Central Government authorising issuance of such communication.13. In the present case, the concurrent finding of fact recorded by the two authorities below, is that, the communication dated 16th January, 1973 relied by the Petitioner is not legal and genuine. That being concurrent finding of fact based on appreciation of evidence on record, cannot be overturned by this Court. In any case, in view of the legal position flowing from the provisions of the Act of 1971, the inevitable conclusion is that the said premises acquired the status of public premises on or from 13th May, 1971. The original tenant therefore, could not have parted with possession thereof to third person without the express prior written approval of the Competent Authority under the P.P.Act. As no such approval has been obtained, the Leave and Licence Agreement pressed into service will be of no effect and cannot extricate the Petitioner from the action under P.P.Act. The said agreement would be of no avail also because, after application of the provisions of the P.P. Act to the said premises, the provisions of Bombay Rent Act have no application thereto. For the same reason, rights under the provisions of the Bombay Rent Act in respect of the public premises, would become unavailable. For, the provisions of P.P. Act overrides the application of the Bombay Rent Act qua the public premises. This position has been restated in catena of decisions. We may usefully refer to the Judgment of the Constitution Bench of the Apex Court in the case of Ashoka Marketing Ltd.Anr. v/s. Punjab National BankOrs. (1990) 4 SCC 406. In paragraph70 of the said decision, the Constitution Bench authoritatively rejected the contention that the provisions contained in the P.P. Act cannot be applied to the premises which fall within the ambit of Rent Control Act. It has taken the view that the provisions of the P.P.Act, to the extent they covered premises falling within the ambit of Rent Control Act, override the provision of the Rent Act; and a person in unauthorised occupation of public premises under section 2(e) of the Act cannot invoke the protection of the Rent Control Act.The above arguments canvassed on behalf of the petitioners will have to be stated to be rejected. For, by now it is authoritatively held by the Apex Court that after coming into force of the P.P.Act, the provisions of the Bombay Rent Act qua the properties of the Government and Government Companies would be inoperative. Indeed, the objective and purpose of the P.P. Act, is in relation to the public premises. Whereas, the provisions of Bombay Rent Act inter alia deal with relationship between landlord and tenant or tenant and subtenant. However, the said relationship is ascribable to a premises which is necessarily governed by the Rent Control Legislation and not otherwise. Once the provisions of the P.P. Act are applicable to any premises, all rights and obligations of the occupants therein by whatever name called, would be and ought to be controlled by the mechanism provided for therein for eviction of occupants from such premises. The P.P. Act recognizes only authorized occupants and all others in occupation will have to be treated as unauthorised occupants or in unauthorised occupation of the public premises. These are the only two classes of occupants which are recognised by the provisions of the P.P. Act in relation to any public premises. Therefore, a person who claims to be a licensee or subtenant of the lawful occupant, cannot acquire the status of a lawful or authorisedthe statutory authority were to recognise his possession of the public premises in that capacity. Indeed, the moment the statutory authority were to recognise the possession of such occupant as legitimate one, than that person will have to be recognised as an authorised occupant of the public premises within the meaning of the P.P. Act and not otherwise. The concept of subtenant or lawful subtenant or protected licensee is the creature of the provisions of the Bombay Rent Act and is alien to the Scheme of P. P. Act. (emphasis supplied)It would be useful to reproduceto 16, which reads thus:14. The argument that the Rent Legislation merely exempts only the premises belonging to Government or a Local Authority clearly overlooks the settled legal position that after coming into force of the P.P. Act, the premises belonging to the Government as also the Corporations or the Companies (covered by the definition of Public Premises Act) are controlled by the regime of the said Act alone. The provisions of P.P. Act overrides the application of the Bombay Rent Act qua the public premises. In other words, the provisions of the Rent Act will have no application to such premises. The fact that section 4 of the Rent Act does not make specific reference to Corporations or companies referred to in section 2(e)2(ii) of the P.P. Act, does not take the matter any further. The field regarding the public premises belonging to the specified Corporation is fully occupied by the Central enactment. The State Legislation would be void to the extent it is repugnant with the Central enactment. In other words, irrespective of the State Legislation (Rent Act) being silent about the exemption of application qua the premises belonging to Banks or Corporations, that is of no avail. For, the law expounded by the Apex Court in the abovesaid two decisions is that the provisions of Bombay Rent Act will have no application to premises belonging to specified Companies or the Corporation such as the Punjab National Bank.15. True it is that the Bombay Rent Act deals with the aspects of relationship of landlord and tenant or tenant andand/or protected licensees. However, that relationship cannot be examined in abstract but is ascribable to a premises. Significantly, even the claim regarding rights and liabilities under the Rent Legislation is in relation to premises to which Rent Legislation is made applicable. If the premises are exempted from the operation of the Rent Legislation, the question of occupant of such premises claiming any rights in the context of provisions of the Rent Act does not arise. If any other view is taken, it would end up in a situation that even if Rent Legislation has no application to the premises, the person occupying the same may assert that he has the protection of the Rent Legislation. That cannot be countenanced. Applying the same logic, once the premises are governed by the definition of Public Premises in the P.P. Act, it is not open to the occupant of such premises or person claiming through the authorised occupant to seek protection of the provisions of the Rent Act therein. For, the provisions of Rent Act have no application to such premises and the only enquiry that is permissible in relation to such premises (public premises) is whether the occupant of the premises is authoritsed or unauthorised in the context of the provisions of P.P. Act and not with reference to any matter referred to in the Bombay Rent Act. I have no hesitation in taking the view that in such a case neither the provisions of section 4 nor section 5(8) read with section 6 of the Bombay Rent Act would be of any avail. Taking any other view would lead to a preposterous situation. In that, if a person claiming to be in occupation in the capacity as licensee orhis claim was to be accepted with reference to the provisions of the Bombay Rent Act, obviously such person would acquire rights and protection in terms of provisions contained in the Bombay Rent Act. In that case he can be dispossessed only by following due process under the said enactment. In a given case, if the Estate Officer was to initiate action of eviction against the original allottee of the public premises on legitimate grounds and order of eviction was to be passed, in that case the so calledsubtenant or licensee inoccupation of portion of the premises would assert that his possession is protected and has become the direct tenant of the statutory authority, having regard to the Scheme of section 14 and 15 of the Bombay Rent Act. In that case, he may further contend that he cannot be evicted merely on the basis of order passed against the main tenant. Obviously, when enacting the P.P. Act, the Parliament consciously evolved a mechanism for eviction of occupants or persons in unauthorised occupation by following summary procedure stipulated therein, so as to ensure remedy of speedy eviction in relation to public premises and also for its effective management and preservation in public interest.16. To get over this position it was argued that only matters referred to in section 15 of the P.P. Act have been barred by the Legislature. It was contended that matters which are not covered by section 15 could be tried by the regular Courts or Special Courts. According to petitioners, none of the matters referred to in section 15 of the P.P. Act would cover the relief claimed by the petitioners in the suit as presented. In the first place, this argument clearly overlooks that once it is held that after coming into force of the P.P. Act, the provisions of the Bombay Rent Act have no application to public premises, the question of resorting to proceedings by invoking the provisions of Rent Act or to assert right in the public premises in the context of provisions of the Rent Legislation does not arise. Viewed thus, there was no necessity to bar the jurisdiction of the Rent Court from entertaining any proceedings between the so called tenant andsubtenant or licenseeon thereof, either in section 15 of the P.P. Act or in section 4 of the Bombay Rent Act, can be no basis to assume that the dispute between the original allottee of the public premises and his subtenant will still be governed by the provisions of the Bombay Rent Act. (emphasis supplied).In another case between LICAnr. v/s. BanatwalaCo., in Writ Petition No.5023 of 2009 decided by learned Single Judge of this Court on 8th September, 2009 to consider the question as to whether the provisions of P.P. Act had overriding effect over the provisions of Maharashtra Rent Control Act, 1999 and whether any application for fixation of standard rent under the provisions of the said Act of 1999 is amenable in relation to the premises governed by the provisions of the P.P. Act, has restated the legal position that the provisions of Rent Control Legislation will cease to apply in respect of the premises governed by the provisions of the P.P.Act and further, occupant of such premises cannot claim protection under the provision of the Rent Control Legislation.16. Considering the above, the fact that there exists a leave and licence agreement in favour of the Petitioner in respect of the said premises, does not take the matter any further. Inspite of the said leave and licence agreement, it will have to be concluded that the entry of the Petitioner in to the said premises itself was without authority therefor. With the result, even the original allottee became liable for action under the provisions of P.P. Act on that count. The status of the Petitioner, at best, would be that of a person claiming through the original allottee/tenant. Insofar as the original allottee/tenant is concerned, his rights in relation to the said premises have been determined by notice of termination dated 12th July, 1980, for the reasons mentioned therein. The said notice has attained finality. It was thus open and permissible for the Estate Officer to take recourse to action under the provisions of P.P. Act. Accordingly, the Estate Officer has initiated the present proceedings not only against the original allottee/tenant but also against the person in occupation of the said premises who is allegedly inducted by the said original allottee/tenant. For taking action against the original allottee/tenant on the ground that the other persons are in unauthorized occupation of the said premises was legitimate and permissible as per the provisions of the PP Act.17. Reverting to the Act of 1972, it was intended to provide for acquisition and transfer of shares of Indian Insurance companies and undertakings of other existing insurers in order to serve better the need of the economy by securing development of general insurance business in the best interests of the community and to ensure that the operation of the economic system does not result in the concentration of wealth to the common detriment, for the regulation and control of such business and for matters connected therewith and incidental thereto. The appointed day, as per the Act of 1972 in terms of Section 3(b) means such day not being a day later than the 2nd day of January, 1973, as the Central Government may, by notification appoint. The Central Government by notification has appointed the said day as 1st January, 1973. There is no dispute in this behalf. It is also not in dispute that the erstwhile company was covered by the definition of existing insurer within the meaning of section 3(e) of the said Act of 1972. By virtue of section 4 of this Act, on the appointed day (i.e. 1st January, 1973), all the shares in the capital of every Indian Insurance Company stood transferred to and vested in Central Government free of all trusts, liabilities and encumbrances affecting them. Further, the erstwhile company was to now function as a Government company. Suffice it to note that this enactment was intended to acquire the shares of the Indian Insurance Company, providing for scheme for reorganisation of general insurance business (Chapter V of the Act). Section 16 provides for scheme for mergers of companies. In the present case, the scheme in respect of erstwhile company, under section 16 of the Act of 1972, was notified by the Central Government, vide notification dated 31st December, 1973. As per the said notification, scheme was to come into force on the 1st day of January, 1974, being the specified day. The effect of the said scheme was to transfer all undertakings of every merged company to and vested in the transferee company (Respondent No.1 herein). Clause 4(2) of the Scheme provides that the undertaking shall be deemed to include all assets, rights, powers, authorities and privileges and all properties, movable and immovable, cash balance, capital and reserve fund, investments and all other rights and interests in or arising out of such property, as were immediately before the specified day in the ownership, possession, power or control of such merged company, whether within or without India and all books of accounts, registers, records and all other documents of whatever nature relating thereto; and shall be deemed to include all borrowings, liabilities and obligations of whatever kind then subsisting of the merged company. The effect of transfer is provided inof the said scheme.stipulates that on the specified day, the merged company shall stand dissolved without winding up.18. Relying on the provisions of the Act of 1972 and the scheme referred to above, it was contended that as per the Act of 1972, all the shares in the capital of the erstwhile company stood transferred to and vested in the Central Government. That does not mean that the properties of the insurer company (erstwhile company) vested in the Central Government before the scheme was notified which came into force from 1st day of January, 1974. For the reasons already noted while dealing with the earlier submission, it is not necessary to elaborate on this matter. Inasmuch as, the provisions of the P.P. Act does not require that the Central Government should be the owner of the property. As aforesaid, even if it is shown that the Central Government has had lesser right than the ownership right in respect of the given premises, the same would acquire the status of public premises. In which case, the premises would become amenable to the rigours of P.P. Act. We have held that by virtue of taking over the management of the undertakings of all insurers pending nationalisation, as per the scheme of the said Act of 1971, the Central Government was in complete control even in respect of the assets and properties of the insurer. This logic is reinforced even by the express provision in clause 4(2) of the Scheme of 1973 framed in exercise of powers under Section 16 of the Act of 1972. For, the expression undertaking as has always been understood even by the Act of 1971, as deemed to include alland rights, powers, privileges thereto. The Petitioner on the other hand, was claiming to have acquired right on the basis of leave and licence agreement executed i.e. on 20th December, 1972, executed after the said premises acquired the status of public premises. As a necessary corollary, the provisions of Rent Act would have no application to the said premises on the date of execution of the leave and licence agreement. Thus, the Entry of the Petitioner in the said premises, was not lawful for the purposes of the P.P. Act as no prior consent or approval of the authorised officer under the PP Act was obtained. Moreover, the said Leave and Licence agreement dated 20th December, 1972 could not have been executed without the prior approval of the person specified by the Central Government in respect of the erstwhile company as required by section 3 of the Act of 1971; and in any case the status of the Petitioner as tenant could not have been accepted by the General Manager of the erstwhile company without the prior approval of the specified person, as per the said provision.19. For the view that we have taken, the other grounds of challenge pressed into service by the Petitioner will be of no avail. Further, it is not necessary for us to examine the grievance about the correctness of the finding of the Appellate Court that the Leave and Licence agreement is invalid. Assuming that the said leave and licence agreement is legal and genuine, that would not take the matter any further for the Petitioner. Similarly, even if we were to consider other documents pressed into service on behalf of the Petitioner, for the reasons already recorded, the same will be of no avail. Inasmuch as, in law, the entry of the Petitioner in the said premises itself was unlawful, in the context of the provisions of P.P. Act. Since the provisions of P.P. Act became applicable to the said premises on and from 13th May, 1971, it is not open to the Petitioner to invoke rights arising on account of the provisions of the Bombay Rent Act. In that, the provisions of the Bombay Rent Act ceased to apply to the said premises from 13th May, 1971.20. Counsel for the Petitioner has placed reliance on the exposition of the Apex Court in the case of New India Assurance Company Ltd. V/s. Nusli Neville WadiaAnr. reported in (2008) 3 SCC 279 , to contend that the Respondent No.1 has not adhered to the guidelines issued by the Central Government. According to the Petitioner, the action on the part of the Respondent No.1 is not fair and reasonable. In the first place, the question considered in the said decision was who should begin to lead evidence in a proceedings under the P.P. Act. Further, the principal ground for initiating proceedings in that case was of requirement of the public premises for own use and occupation and incidentally because the tenancy was already terminated. In the present case, the competent authority in the first place issued notice of termination on 12th July, 1980 against the original allottee/tenant(Mr.Erix Voller) on the ground that he had allowed user of the said premises by unauthorised personsand was not using it himself for the purpose let out to him. The original allottee/tenant allowed the said notice of termination to become final. It is only thereafter, show cause notice was issued not only to the said original allottee/tenant but also to the petitioner who was found to be in unauthorised occupation of the suit premises. The said proceedings were contested only by the Petitioner. In the present case, the Petitioner is not claiming to be allottee/tenant of the Respondent No.1. The Estate Officer after giving fair opportunity to the Petitioner has recorded finding of fact that the Petitioner was in occupation of the said premises without authority therefor. That finding of fact has been upheld by the Appellate forum, i.e., the City Civil Court. The procedure followed by the Respondent No.1 is in conformity with the requirement of the P.P. Act. It is not possible to countenance the grievance of the Petitioner either about inappropriateness in the conduct of the proceedings or of action of the Respondent No.1 in resorting to eviction of the petitioner from the said premises being arbitrary, malafide, unfair or unreasonable as such. If any other view is taken that will defeat the intent of the P.P. Act, which was to provide for a speedy machinery for eviction of unauthorized occupants of the public premises. Suffice it to observe that the decision pressed into service by the Petitioner is of no avail to the fact situation of the present case.21. To sum up, we hold that the provisions of PP Act became applicable to the said premises on and from 13th May, 1971. Further, the entry of the Petitioner and continued occupation of the suit premises is without authority therefor in the context of the provisions of the PP Act; and also not in conformity with the provisions of the Act of 1971. The leave and licence agreement dated 20th December, 1972 cannot confer higher right in the Petitioner than that of the original allottee/tenant who has suffered the notice of termination issued as back as on 12th July, 1980. Atleast on and from that date, the occupation of the original allottee/tenant and as a consequence of that the Petitioner, who was claiming through him, became unauthorised occupant and amenable to action of eviction as well as payment of damages. As mentioned earlier the question regarding damages will be reconsidered by the Estate Officer in view of the limited remand of the proceedings in terms of the impugned decision of the City Civil Court. The order of eviction as passed against the opposite parties does not suffer from any infirmity whatsoever. The same will have to be therefore upheld. | 0 | 12,564 | 7,423 | ### Instruction:
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been understood even by the Act of 1971, as deemed to include all assets-properties and rights, powers, privileges thereto. The Petitioner on the other hand, was claiming to have acquired right on the basis of leave and licence agreement executed i.e. on 20th December, 1972, executed after the said premises acquired the status of public premises. As a necessary corollary, the provisions of Rent Act would have no application to the said premises on the date of execution of the leave and licence agreement. Thus, the Entry of the Petitioner in the said premises, was not lawful for the purposes of the P.P. Act as no prior consent or approval of the authorised officer under the PP Act was obtained. Moreover, the said Leave and Licence agreement dated 20th December, 1972 could not have been executed without the prior approval of the person specified by the Central Government in respect of the erstwhile company as required by section 3 of the Act of 1971; and in any case the status of the Petitioner as tenant could not have been accepted by the General Manager of the erstwhile company without the prior approval of the specified person, as per the said provision.19. For the view that we have taken, the other grounds of challenge pressed into service by the Petitioner will be of no avail. Further, it is not necessary for us to examine the grievance about the correctness of the finding of the Appellate Court that the Leave and Licence agreement is invalid. Assuming that the said leave and licence agreement is legal and genuine, that would not take the matter any further for the Petitioner. Similarly, even if we were to consider other documents pressed into service on behalf of the Petitioner, for the reasons already recorded, the same will be of no avail. Inasmuch as, in law, the entry of the Petitioner in the said premises itself was unlawful, in the context of the provisions of P.P. Act. Since the provisions of P.P. Act became applicable to the said premises on and from 13th May, 1971, it is not open to the Petitioner to invoke rights arising on account of the provisions of the Bombay Rent Act. In that, the provisions of the Bombay Rent Act ceased to apply to the said premises from 13th May, 1971.20. Counsel for the Petitioner has placed reliance on the exposition of the Apex Court in the case of New India Assurance Company Ltd. V/s. Nusli Neville Wadia & Anr. reported in (2008) 3 SCC 279 , to contend that the Respondent No.1 has not adhered to the guidelines issued by the Central Government. According to the Petitioner, the action on the part of the Respondent No.1 is not fair and reasonable. In the first place, the question considered in the said decision was who should begin to lead evidence in a proceedings under the P.P. Act. Further, the principal ground for initiating proceedings in that case was of requirement of the public premises for own use and occupation and incidentally because the tenancy was already terminated. In the present case, the competent authority in the first place issued notice of termination on 12th July, 1980 against the original allottee/tenant(Mr.Erix Voller) on the ground that he had allowed user of the said premises by unauthorised persons and was not using it himself for the purpose let out to him. The original allottee/tenant allowed the said notice of termination to become final. It is only thereafter, show cause notice was issued not only to the said original allottee/tenant but also to the petitioner who was found to be in unauthorised occupation of the suit premises. The said proceedings were contested only by the Petitioner. In the present case, the Petitioner is not claiming to be allottee/tenant of the Respondent No.1. The Estate Officer after giving fair opportunity to the Petitioner has recorded finding of fact that the Petitioner was in occupation of the said premises without authority therefor. That finding of fact has been upheld by the Appellate forum, i.e., the City Civil Court. The procedure followed by the Respondent No.1 is in conformity with the requirement of the P.P. Act. It is not possible to countenance the grievance of the Petitioner either about inappropriateness in the conduct of the proceedings or of action of the Respondent No.1 in resorting to eviction of the petitioner from the said premises being arbitrary, malafide, unfair or unreasonable as such. If any other view is taken that will defeat the intent of the P.P. Act, which was to provide for a speedy machinery for eviction of unauthorized occupants of the public premises. Suffice it to observe that the decision pressed into service by the Petitioner is of no avail to the fact situation of the present case.21. To sum up, we hold that the provisions of PP Act became applicable to the said premises on and from 13th May, 1971. Further, the entry of the Petitioner and continued occupation of the suit premises is without authority therefor in the context of the provisions of the PP Act; and also not in conformity with the provisions of the Act of 1971. The leave and licence agreement dated 20th December, 1972 cannot confer higher right in the Petitioner than that of the original allottee/tenant who has suffered the notice of termination issued as back as on 12th July, 1980. Atleast on and from that date, the occupation of the original allottee/tenant and as a consequence of that the Petitioner, who was claiming through him, became unauthorised occupant and amenable to action of eviction as well as payment of damages. As mentioned earlier the question regarding damages will be reconsidered by the Estate Officer in view of the limited remand of the proceedings in terms of the impugned decision of the City Civil Court. The order of eviction as passed against the opposite parties does not suffer from any infirmity whatsoever. The same will have to be therefore upheld.
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undertaking as has always been understood even by the Act of 1971, as deemed to include alland rights, powers, privileges thereto. The Petitioner on the other hand, was claiming to have acquired right on the basis of leave and licence agreement executed i.e. on 20th December, 1972, executed after the said premises acquired the status of public premises. As a necessary corollary, the provisions of Rent Act would have no application to the said premises on the date of execution of the leave and licence agreement. Thus, the Entry of the Petitioner in the said premises, was not lawful for the purposes of the P.P. Act as no prior consent or approval of the authorised officer under the PP Act was obtained. Moreover, the said Leave and Licence agreement dated 20th December, 1972 could not have been executed without the prior approval of the person specified by the Central Government in respect of the erstwhile company as required by section 3 of the Act of 1971; and in any case the status of the Petitioner as tenant could not have been accepted by the General Manager of the erstwhile company without the prior approval of the specified person, as per the said provision.19. For the view that we have taken, the other grounds of challenge pressed into service by the Petitioner will be of no avail. Further, it is not necessary for us to examine the grievance about the correctness of the finding of the Appellate Court that the Leave and Licence agreement is invalid. Assuming that the said leave and licence agreement is legal and genuine, that would not take the matter any further for the Petitioner. Similarly, even if we were to consider other documents pressed into service on behalf of the Petitioner, for the reasons already recorded, the same will be of no avail. Inasmuch as, in law, the entry of the Petitioner in the said premises itself was unlawful, in the context of the provisions of P.P. Act. Since the provisions of P.P. Act became applicable to the said premises on and from 13th May, 1971, it is not open to the Petitioner to invoke rights arising on account of the provisions of the Bombay Rent Act. In that, the provisions of the Bombay Rent Act ceased to apply to the said premises from 13th May, 1971.20. Counsel for the Petitioner has placed reliance on the exposition of the Apex Court in the case of New India Assurance Company Ltd. V/s. Nusli Neville WadiaAnr. reported in (2008) 3 SCC 279 , to contend that the Respondent No.1 has not adhered to the guidelines issued by the Central Government. According to the Petitioner, the action on the part of the Respondent No.1 is not fair and reasonable. In the first place, the question considered in the said decision was who should begin to lead evidence in a proceedings under the P.P. Act. Further, the principal ground for initiating proceedings in that case was of requirement of the public premises for own use and occupation and incidentally because the tenancy was already terminated. In the present case, the competent authority in the first place issued notice of termination on 12th July, 1980 against the original allottee/tenant(Mr.Erix Voller) on the ground that he had allowed user of the said premises by unauthorised personsand was not using it himself for the purpose let out to him. The original allottee/tenant allowed the said notice of termination to become final. It is only thereafter, show cause notice was issued not only to the said original allottee/tenant but also to the petitioner who was found to be in unauthorised occupation of the suit premises. The said proceedings were contested only by the Petitioner. In the present case, the Petitioner is not claiming to be allottee/tenant of the Respondent No.1. The Estate Officer after giving fair opportunity to the Petitioner has recorded finding of fact that the Petitioner was in occupation of the said premises without authority therefor. That finding of fact has been upheld by the Appellate forum, i.e., the City Civil Court. The procedure followed by the Respondent No.1 is in conformity with the requirement of the P.P. Act. It is not possible to countenance the grievance of the Petitioner either about inappropriateness in the conduct of the proceedings or of action of the Respondent No.1 in resorting to eviction of the petitioner from the said premises being arbitrary, malafide, unfair or unreasonable as such. If any other view is taken that will defeat the intent of the P.P. Act, which was to provide for a speedy machinery for eviction of unauthorized occupants of the public premises. Suffice it to observe that the decision pressed into service by the Petitioner is of no avail to the fact situation of the present case.21. To sum up, we hold that the provisions of PP Act became applicable to the said premises on and from 13th May, 1971. Further, the entry of the Petitioner and continued occupation of the suit premises is without authority therefor in the context of the provisions of the PP Act; and also not in conformity with the provisions of the Act of 1971. The leave and licence agreement dated 20th December, 1972 cannot confer higher right in the Petitioner than that of the original allottee/tenant who has suffered the notice of termination issued as back as on 12th July, 1980. Atleast on and from that date, the occupation of the original allottee/tenant and as a consequence of that the Petitioner, who was claiming through him, became unauthorised occupant and amenable to action of eviction as well as payment of damages. As mentioned earlier the question regarding damages will be reconsidered by the Estate Officer in view of the limited remand of the proceedings in terms of the impugned decision of the City Civil Court. The order of eviction as passed against the opposite parties does not suffer from any infirmity whatsoever. The same will have to be therefore upheld.
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State of Madhya Pradesh Vs. Dadu Jagdish Prasad | that the Maharaja had never passed any order by virtue of which Anandgarh Estate was to remain a revenue-free estate. The Trial Court decreed the suit holding that the Anandgarh Estate had remained a revenue-free estate till June 30, 1953, which was the date on which all the jagirs and estates vested under the Vindhya Pradesh Abolition of Jagir and Land Revenue Act, 1952. The Trial Court relied on Ext. P. 22, dated March 18, 1948, which was the order of the Maharaja declaring that the Anandgarh Estate was not liable to pay land revenue. The State appealed to the High Court. The appeal was heard in the first instance by a Division Bench consisting of Naik and Shiv Dayal, JJ. The learned judges differed in their judgments. According to Naik, J. the Trial Court had rightly decreed the suit. He had no hesitation in holding that Ext. P. 22 was the order passed by the then ruler whereby he had expressed a firm desire contrary to the recommendation of the State Council that the estate of the plaintiff for all times be free from liability to pay land revenue. He accepted the evidence produced relating to Ext. P. 22 and held that the Trial Court had rightly relied on that evidence to come to the conclusion that an order had in fact been made by the Maharaja as embodied in Ext. P. 22, Shiv Dayal, J. was of the opinion that there was no legislative element in the provision of the grant and it did not contain any commend which had to be obeyed by the citizens. It was a gift, pure and simple, made by the ruler. According to him Ext. P. 22 did not contain any order and at the most it was an expression of the opinion or desire which fell short of an order. The successor State was not bound to recognise any exemption or concession contained in any order or in a grant of the predecessor State. The appeal was referred to a third judge, Niwaskar, J., who head it agree with Naik, J. He carefully considered the evidence relating to the genuineness and authenticity of the order made by the Maharaja on March 18, 1948, and held that Ext. P. 22 embodied his order and that it had been established that by that document the Maharaja had given a decision of the durbar freeing the estate for a limited period of two generation from liability to "Deb" (land revenue). 3. Rule 3 of the Rewa State Pawai Rules, 1934 was in these terms : "The annual revenue payable to the Durbar by each tenure is as follows, subject to the provisions of Rule 8 regarding transfer and to any individual exception sanctioned by the Durbar..........." Section 2 of the Rewa State Land Revenue and Tenancy Code, 1935 provided : "The annual revenue payable to the Durbar by each Pawai tenure is as follows, subject to the provisions of Section 24 regarding transfer and to any individual exception sanctioned by the Durbar......" 4. It is thus clear that the law in force at the material time contained specific provisions that the Durbar could exempt any estate from payment of land revenue. The Trial Court and the two learned Judges of the High Court, namely, Naik and Newaskar, JJ., held that the Maharaja, be means of an order, evidenced by Ext. P. 22, had made such an exemption in the case of Anandgarh Estate. Mr. Shroff counsel for the appellant made an attempt to assail the correctness of the finding on this point but we are satisfied, after an examination of the various facts and circumstances including the evidence, that the conclusion of the Trial Court and the two learned Judges of the High Court was unexceptionable with regard to the making of an order by the ruler who constituted the Durbar in terms of the aforesaid provision of the Rules and the Code exempting the Anandgarh Estate from payment of land revenue for two generation. Once this conclusion is reached no other point survives although although Mr. Shroff made a faint attempt, to suggest that the exemption granted in respect of Anandgarh Estate from payment of land revenue by an order of the Durbar under the Rules was merely an executive act which could not be binding on the successor State. It is true that there is a well recognised distinction between the legislative and executive acts in regard to the orders issued by absolute rulers and that whenever a dispute arose as to whether an order passed by an absolute ruler of an Indian State represented a legislative act all relevant factors were considered before the question was answered. These relevant factors were the nature of the order, the scope and effect of its provisions, its general setting and context, etc. Vide Union of India and Others v. Gwalior Rayon Silk Mfg. (Weaving) Co., Ltd., and Another. ((1964) 7 SCR 892 at 903.) 5. In the present case the order made by the Durbar was under legislative sanction inasmuch as it was made in terms of the provisions of statutory rules and the Rewa Land Revenue and Tenancy Code. The decision of this Court which is apposite here is the one rendered in Promod Chandra Deb and Others v. The State of Orissa and Others. (1962 Supp 1 SCR 405.) This Court held, while disposing of Writ Petition No. 79 of 1957 along with other writ petitions which had been filed challenging the orders annulling various grants that the grant by the Ruler of Talcher had been made subject to the terms and conditions laid down under Order 31 of the Rules and Regulations of the State of Talcher of 1937. These Rules and Regulations were regarded as the law of the State and it was in accordance therewith that the Khorposh grant was made by the Ruler and therefore it could not be annulled by an executive action by a successor State. | 0[ds]4. It is thus clear that the law in force at the material time contained specific provisions that the Durbar could exempt any estate from payment of land revenue. The Trial Court and the two learned Judges of the High Court, namely, Naik and Newaskar, JJ., held that the Maharaja, be means of an order, evidenced by Ext. P. 22, had made such an exemption in the case of Anandgarh Estate. Mr. Shroff counsel for the appellant made an attempt to assail the correctness of the finding on this point but we are satisfied, after an examination of the various facts and circumstances including the evidence, that the conclusion of the Trial Court and the two learned Judges of the High Court was unexceptionable with regard to the making of an order by the ruler who constituted the Durbar in terms of the aforesaid provision of the Rules and the Code exempting the Anandgarh Estate from payment of land revenue for two generation. Once this conclusion is reached no other point survives although although Mr. Shroff made a faint attempt, to suggest that the exemption granted in respect of Anandgarh Estate from payment of land revenue by an order of the Durbar under the Rules was merely an executive act which could not be binding on the successor State. It is true that there is a well recognised distinction between the legislative and executive acts in regard to the orders issued by absolute rulers and that whenever a dispute arose as to whether an order passed by an absolute ruler of an Indian State represented a legislative act all relevant factors were considered before the question was answered. These relevant factors were the nature of the order, the scope and effect of its provisions, its general setting and context, etc. Vide Union of India and Others v. Gwalior Rayon Silk Mfg. (Weaving) Co., Ltd., and Another. ((1964) 7 SCR 892 at 903.)5. In the present case the order made by the Durbar was under legislative sanction inasmuch as it was made in terms of the provisions of statutory rules and the Rewa Land Revenue and Tenancy Code. The decision of this Court which is apposite here is the one rendered in Promod Chandra Deb and Others v. The State of Orissa and Others. (1962 Supp 1 SCR 405.) This Court held, while disposing of Writ Petition No. 79 of 1957 along with other writ petitions which had been filed challenging the orders annulling various grants that the grant by the Ruler of Talcher had been made subject to the terms and conditions laid down under Order 31 of the Rules and Regulations of the State of Talcher of 1937. These Rules and Regulations were regarded as the law of the State and it was in accordance therewith that the Khorposh grant was made by the Ruler and therefore it could not be annulled by an executive action by a successor State. | 0 | 1,446 | 537 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
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that the Maharaja had never passed any order by virtue of which Anandgarh Estate was to remain a revenue-free estate. The Trial Court decreed the suit holding that the Anandgarh Estate had remained a revenue-free estate till June 30, 1953, which was the date on which all the jagirs and estates vested under the Vindhya Pradesh Abolition of Jagir and Land Revenue Act, 1952. The Trial Court relied on Ext. P. 22, dated March 18, 1948, which was the order of the Maharaja declaring that the Anandgarh Estate was not liable to pay land revenue. The State appealed to the High Court. The appeal was heard in the first instance by a Division Bench consisting of Naik and Shiv Dayal, JJ. The learned judges differed in their judgments. According to Naik, J. the Trial Court had rightly decreed the suit. He had no hesitation in holding that Ext. P. 22 was the order passed by the then ruler whereby he had expressed a firm desire contrary to the recommendation of the State Council that the estate of the plaintiff for all times be free from liability to pay land revenue. He accepted the evidence produced relating to Ext. P. 22 and held that the Trial Court had rightly relied on that evidence to come to the conclusion that an order had in fact been made by the Maharaja as embodied in Ext. P. 22, Shiv Dayal, J. was of the opinion that there was no legislative element in the provision of the grant and it did not contain any commend which had to be obeyed by the citizens. It was a gift, pure and simple, made by the ruler. According to him Ext. P. 22 did not contain any order and at the most it was an expression of the opinion or desire which fell short of an order. The successor State was not bound to recognise any exemption or concession contained in any order or in a grant of the predecessor State. The appeal was referred to a third judge, Niwaskar, J., who head it agree with Naik, J. He carefully considered the evidence relating to the genuineness and authenticity of the order made by the Maharaja on March 18, 1948, and held that Ext. P. 22 embodied his order and that it had been established that by that document the Maharaja had given a decision of the durbar freeing the estate for a limited period of two generation from liability to "Deb" (land revenue). 3. Rule 3 of the Rewa State Pawai Rules, 1934 was in these terms : "The annual revenue payable to the Durbar by each tenure is as follows, subject to the provisions of Rule 8 regarding transfer and to any individual exception sanctioned by the Durbar..........." Section 2 of the Rewa State Land Revenue and Tenancy Code, 1935 provided : "The annual revenue payable to the Durbar by each Pawai tenure is as follows, subject to the provisions of Section 24 regarding transfer and to any individual exception sanctioned by the Durbar......" 4. It is thus clear that the law in force at the material time contained specific provisions that the Durbar could exempt any estate from payment of land revenue. The Trial Court and the two learned Judges of the High Court, namely, Naik and Newaskar, JJ., held that the Maharaja, be means of an order, evidenced by Ext. P. 22, had made such an exemption in the case of Anandgarh Estate. Mr. Shroff counsel for the appellant made an attempt to assail the correctness of the finding on this point but we are satisfied, after an examination of the various facts and circumstances including the evidence, that the conclusion of the Trial Court and the two learned Judges of the High Court was unexceptionable with regard to the making of an order by the ruler who constituted the Durbar in terms of the aforesaid provision of the Rules and the Code exempting the Anandgarh Estate from payment of land revenue for two generation. Once this conclusion is reached no other point survives although although Mr. Shroff made a faint attempt, to suggest that the exemption granted in respect of Anandgarh Estate from payment of land revenue by an order of the Durbar under the Rules was merely an executive act which could not be binding on the successor State. It is true that there is a well recognised distinction between the legislative and executive acts in regard to the orders issued by absolute rulers and that whenever a dispute arose as to whether an order passed by an absolute ruler of an Indian State represented a legislative act all relevant factors were considered before the question was answered. These relevant factors were the nature of the order, the scope and effect of its provisions, its general setting and context, etc. Vide Union of India and Others v. Gwalior Rayon Silk Mfg. (Weaving) Co., Ltd., and Another. ((1964) 7 SCR 892 at 903.) 5. In the present case the order made by the Durbar was under legislative sanction inasmuch as it was made in terms of the provisions of statutory rules and the Rewa Land Revenue and Tenancy Code. The decision of this Court which is apposite here is the one rendered in Promod Chandra Deb and Others v. The State of Orissa and Others. (1962 Supp 1 SCR 405.) This Court held, while disposing of Writ Petition No. 79 of 1957 along with other writ petitions which had been filed challenging the orders annulling various grants that the grant by the Ruler of Talcher had been made subject to the terms and conditions laid down under Order 31 of the Rules and Regulations of the State of Talcher of 1937. These Rules and Regulations were regarded as the law of the State and it was in accordance therewith that the Khorposh grant was made by the Ruler and therefore it could not be annulled by an executive action by a successor State.
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4. It is thus clear that the law in force at the material time contained specific provisions that the Durbar could exempt any estate from payment of land revenue. The Trial Court and the two learned Judges of the High Court, namely, Naik and Newaskar, JJ., held that the Maharaja, be means of an order, evidenced by Ext. P. 22, had made such an exemption in the case of Anandgarh Estate. Mr. Shroff counsel for the appellant made an attempt to assail the correctness of the finding on this point but we are satisfied, after an examination of the various facts and circumstances including the evidence, that the conclusion of the Trial Court and the two learned Judges of the High Court was unexceptionable with regard to the making of an order by the ruler who constituted the Durbar in terms of the aforesaid provision of the Rules and the Code exempting the Anandgarh Estate from payment of land revenue for two generation. Once this conclusion is reached no other point survives although although Mr. Shroff made a faint attempt, to suggest that the exemption granted in respect of Anandgarh Estate from payment of land revenue by an order of the Durbar under the Rules was merely an executive act which could not be binding on the successor State. It is true that there is a well recognised distinction between the legislative and executive acts in regard to the orders issued by absolute rulers and that whenever a dispute arose as to whether an order passed by an absolute ruler of an Indian State represented a legislative act all relevant factors were considered before the question was answered. These relevant factors were the nature of the order, the scope and effect of its provisions, its general setting and context, etc. Vide Union of India and Others v. Gwalior Rayon Silk Mfg. (Weaving) Co., Ltd., and Another. ((1964) 7 SCR 892 at 903.)5. In the present case the order made by the Durbar was under legislative sanction inasmuch as it was made in terms of the provisions of statutory rules and the Rewa Land Revenue and Tenancy Code. The decision of this Court which is apposite here is the one rendered in Promod Chandra Deb and Others v. The State of Orissa and Others. (1962 Supp 1 SCR 405.) This Court held, while disposing of Writ Petition No. 79 of 1957 along with other writ petitions which had been filed challenging the orders annulling various grants that the grant by the Ruler of Talcher had been made subject to the terms and conditions laid down under Order 31 of the Rules and Regulations of the State of Talcher of 1937. These Rules and Regulations were regarded as the law of the State and it was in accordance therewith that the Khorposh grant was made by the Ruler and therefore it could not be annulled by an executive action by a successor State.
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Champaklal Chimanlal Shah Vs. The Union Of India | Gopi Kishore Prasad, AIR 1960 SC 689 . That was a case of a probationer and this Court laid down five propositions therein. It is the third proposition therein on which strong reliance has been placed on behalf of the appellant. It is in these terms:-"But, if instead of terminating such a persons service without any enquiry, the employer chooses to hold an enquiry into his alleged misconduct or inefficiency, or for some similar reason, the termination of service is by way of punishment, because it puts a stigma on his competence and thus affects his future career. In such a case he is entitled to the protection of Art. 311 (2) of the Constitution."20. It is urged on behalf of the appellant that this proposition means that as soon as any kind of enquiry is held against a probationer-and the same it is said will apply to a temporary employee as the two stand more or less on the same footing-the protection of Art. 311 (2) would be available. We are of opinion that this is reading much more in the proposition than was ever intended by this Court. In that case the Government after some kind of enquiry said in the order terminating the services of the servant concerned that confidential enquires showed that he had the reputation of being a corrupt officer and that there was ample material to show that the report about his resorting to corrupt practices was justified. The order further said that his work was wholly unsatisfactory and in consideration of those matters, it was provisionally decided to terminate the probation and the government servant was asked to show cause why he should not be discharged. His explanation was then considered and the Government finally decided to discharge him. The facts of that case as they appeared from the copy of the government decision showed that the government was actually proceeding on the basis that Art. 311 (2) was applicable in that case and that is why some enquires were held and a provisional conclusion to terminate the services of the officer concerned was arrived at and he was asked to show cause against that. In those circumstances this Court held that as government had purported to take action under Art. 311, the action was bad as the protection envisaged by that Article was not afforded to the servant concerned. The third proposition therefore in that case does not in our opinion lay down that as soon as any kind of enquiry is held into the conduct of a probationer or a temporary servant he is immediately entitled to the protection of Art. 311. All that the third proposition lays down is that if the government chooses to hold an enquiry purporting to act under Art. 311 as was the case in that case, it must afford to the government servant the protection which that Article envisages.21. Gopi Kishore Prasads case, AIR 1960 SC 689 was considered by this Court in a later case in State of Orissa v. Ram Narayan Das, (1961) 1 SCR 606 : (AIR 1961 SC 177 ) which was also a case of a probationer. In Ram Narayan Das case, (1961) 1 SCR 606 : (AIR 1961 SC 177 ) the order was to the effect that the government servant was discharged from service for unsatisfactory work and conduct from the date on which the order was served on him. This Court in Ram Narayan Dass case, (1961) 1 SCR 606 : (AIR 1961 SC 177 ) referred to the rules, which provided that "where it is proposed to terminate the employment of a probationer, whether during or at the end of the period of probation, for any specific fault or on account of his unsuitability for the service, the probationer shall be apprised of the grounds of such proposal and given an opportunity to show cause against it before orders are passed by the authority competent to terminate the employment" and pointed out that action in accordance with the rules would not be hit by Art. 311. Gopi Kishore Prasads case, AIR 1960 SC 689 was distinguished in that case and it was pointed out that the third proposition in Gopi Kishore Prasads case, AIR 1960 SC 689 referred to "an enquiry into allegations of misconduct or inefficiency with a view, if they were found established, to imposing punishment and not to an enquiry whether a probationer should be confirmed", which means that where the Government purports to hold an enquiry under Art. 311 read with the Rules in order to punish an officer, it must afford him the protection provided therein. The third proposition therefore in Gopi Kishore Prasads case, AIR 1960 SC 689 must be read in the context of that case and cannot apply to a case where the government holds what we have called a preliminary enquiry to find out whether a temporary servant should be discharged or not in accordance with his contract or a specific service rule in view of his conduct. The third proposition must be restricted only to those cases whether of temporary government servants or others, where government purports to act under Art. 311 (2) but ends up with a mere order of termination. In such a case the form of the order is immaterial and the termination of service may amount to dismissal or removal. The same view has been taken in Jagdish Miter v. Union of India, C.A. No. 718 of 1962 D/- 20-9-1963: (AIR 1964 SC 449 ).22. We are, therefore, of opinion that on the facts of this case it cannot be said that the order by which the appellants services were terminated under R. 5 was an order inflicting the punishment of dismissal or removal to which Art. 311 (2) applied. It was in our opinion an order which was justified under R. 5 of the Rules and the appellant was not entitled to the protection of Art. 311 (2) in the circumstances. | 0[ds]It follows therefore that before a government servant can be deemed to be in quasi-permanent service a declaration must be issued under the second sub-clause of R. 3, for that is the sine qua non for the commencement of quasi-permanent service. Without such a declaration quasi-permanent service cannot begin. If therefore the appellants contention were to be accepted and a temporary government servant can be deemed to be in quasi-permanent service, if only the first sub-clause has been fulfilled, viz., that he has been in continuos government service for more than three years, there will be complete irreconciability between R. 2(b) and the first clause of R. 3. Therefore, reading these two rules together the conclusion is inevitable that we must read the two sub-clauses conjunctively and hold that both conditions must be fulfilled before a Government servant can be deemed to be in quasi-permanent service, namely, (i) that he has been in continuous government service for more than three years, and (ii) that the appointing authority after satisfying itself as to suitability in various respects for employment in quasi-permanent capacity has issued a declaration to that effect. It is however urged that the definitions in R. 2 have to be read subject to there being nothing repugnant in the subject or context and it is contended that in the context of R. 3 the two sub-clauses must be read disjunctively. We are of opinion that there is no force in this argument, and as a matter of fact the context of R. 3 itself requires that that rule must be read in harmony with the definition of "quasi-permanent service" in R. 2(b), for it could not possibly be the intention of the rule making authority to create disharmony between the definition in R. 2(b) and the provision in R. 3. The contention on behalf of the appellants that the two sub-clauses are independent and have to be read disjunctively must be rejected and it must be held that both the conditions in R. 3 must be satisfied before a government servant can be deemed to be in quasi-permanentscheme of the Rules therefore clearly shows that a declaration under R. 3 is necessary before a temporary government servant can claim to be a quasi-permanent employee. Otherwise if the two sub-clauses of R. 3 were to be read disjunctively the result would be that a person may become a quasi-permanent employee under sub-cl. (i) but will get none of the advantages mentioned above. We are therefore satisfied that the scheme of the Rules and the harmony that is essential between R. 2(b) defining "quasi-permanent service" and R. 3 laying down how a government servant can be deemed to be in quasi-permanent service require that the two sub-clauses should be read conjunctively and that two conditions are necessary before a government servant can be deemed to be in quasi-permanent service, namely, (i) continuous service for more than three years, and (ii) declaration as required by sub-cl. (ii) of R. 3. It is not in dispute that though the appellant had been in service for more than three years by 1954, no declaration as required by sub-cl. (ii) of R. 3 has ever been made in his case. He cannot therefore claim to be in quasi-permanent service. It follows therefore that he cannot claim the benefit of R. 6, which lays down that the services of a government servant in quasi-permanent service shall be liable to termination in the same circumstances and in the same manner as government servants in permanent service. If he could claim the benefit of R. 6, he would have been certainly entitled to the protection of Art. 311. As he is not entitled to the benefit of R. 6, he cannot claim the benefit of Art. 311 (2) on the ground that he must be deemed to be in quasi-permanent service.8. The appellant therefore must be held to be still in temporary service when his services were dispensed with in Augustdo not think it necessary for present purposes to decide whether Art. 16 would apply to rules relating to termination of service. We shall assume for the purposes of this appeal that Art. 16 will apply even in the case of rules relating to termination of service. But we fail to see how the rule which applies to one class of government servants in the matter of termination but does not apply to the other two classes can be said to violate equality of opportunity provided in Art. 16. The classification of government servants into these classes is reasonable and differences in the matter of termination of service between these classes cannot be said to be discriminatory in the circumstances. In particular the very fact that the service of a government servant is purely temporary makes him a class apart from those in permanent service and such government servant cannot necessarily claim all the advantages which a permanent servant has in the matter of security of service. We are therefore of opinion that considering the nature of the employment of a temporary government servant, a provision like that in R. 5 in respect of termination of service is a reasonable provision which cannot be said to deny equality of opportunity provided in Art. 16. The attack therefore on R. 5 on the ground that it is hit by Art. 16 of the Constitution musttermination of the service of a temporary government servant takes place on the ground that his conduct is not satisfactory there can in our opinion be no question of any discrimination. It would be absurd to say that if the service of one temporary servant is terminated on the ground of unsatisfactory conduct the services of all similar employees must also be terminated along with him, irrespective of what their conduct is. Therefore, even though some of those mentioned in the plaint by the appellant were junior to him and did not have as good qualifications as he had and were retained in service, it does not follow that the action taken against the appellant terminating his services was discriminatory for that action was taken on the basis of his unsatisfactory conduct. A question of discrimination may arise in a case of retrenchment on account of abolition of one of several temporary posts of the same kind in one office but can in our opinion never arise in the case of dispensing with the services of a particular temporary employee on account of his conduct being unsatisfactory. We therefore reject the contention that the appellant was denied the protection of Art. 16 and was treated in a discriminatoryare therefore of opinion that on the facts of this case Art. 311 (2) has no application and the appellant was not entitled to the protection of that Article before his services were terminated under R. 5, for the termination of service here does not amount to infliction of the penalty of dismissal orappellant thereafter was transferred to Bombay to give him chance of improvement and it was only six months later when it was found that his work and conduct were still unsatisfactory that government took action under R. 5 and dispensed with his services. On the facts of the present case therefore it cannot be said that the order of dispensing with services of the appellant which was passed in August 1954 was an order punishing the appellant by imposing upon him the penalty of removal orare of opinion that this is reading much more in the proposition than was ever intended by this Court. In that case the Government after some kind of enquiry said in the order terminating the services of the servant concerned that confidential enquires showed that he had the reputation of being a corrupt officer and that there was ample material to show that the report about his resorting to corrupt practices was justified. The order further said that his work was wholly unsatisfactory and in consideration of those matters, it was provisionally decided to terminate the probation and the government servant was asked to show cause why he should not be discharged. His explanation was then considered and the Government finally decided to discharge him. The facts of that case as they appeared from the copy of the government decision showed that the government was actually proceeding on the basis that Art. 311 (2) was applicable in that case and that is why some enquires were held and a provisional conclusion to terminate the services of the officer concerned was arrived at and he was asked to show cause against that. In those circumstances this Court held that as government had purported to take action under Art. 311, the action was bad as the protection envisaged by that Article was not afforded to the servant concerned. The third proposition therefore in that case does not in our opinion lay down that as soon as any kind of enquiry is held into the conduct of a probationer or a temporary servant he is immediately entitled to the protection of Art. 311. All that the third proposition lays down is that if the government chooses to hold an enquiry purporting to act under Art. 311 as was the case in that case, it must afford to the government servant the protection which that Article envisages.We are, therefore, of opinion that on the facts of this case it cannot be said that the order by which the appellants services were terminated under R. 5 was an order inflicting the punishment of dismissal or removal to which Art. 311 (2) applied. It was in our opinion an order which was justified under R. 5 of the Rules and the appellant was not entitled to the protection of Art. 311 (2) in the circumstances. | 0 | 9,324 | 1,762 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
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Gopi Kishore Prasad, AIR 1960 SC 689 . That was a case of a probationer and this Court laid down five propositions therein. It is the third proposition therein on which strong reliance has been placed on behalf of the appellant. It is in these terms:-"But, if instead of terminating such a persons service without any enquiry, the employer chooses to hold an enquiry into his alleged misconduct or inefficiency, or for some similar reason, the termination of service is by way of punishment, because it puts a stigma on his competence and thus affects his future career. In such a case he is entitled to the protection of Art. 311 (2) of the Constitution."20. It is urged on behalf of the appellant that this proposition means that as soon as any kind of enquiry is held against a probationer-and the same it is said will apply to a temporary employee as the two stand more or less on the same footing-the protection of Art. 311 (2) would be available. We are of opinion that this is reading much more in the proposition than was ever intended by this Court. In that case the Government after some kind of enquiry said in the order terminating the services of the servant concerned that confidential enquires showed that he had the reputation of being a corrupt officer and that there was ample material to show that the report about his resorting to corrupt practices was justified. The order further said that his work was wholly unsatisfactory and in consideration of those matters, it was provisionally decided to terminate the probation and the government servant was asked to show cause why he should not be discharged. His explanation was then considered and the Government finally decided to discharge him. The facts of that case as they appeared from the copy of the government decision showed that the government was actually proceeding on the basis that Art. 311 (2) was applicable in that case and that is why some enquires were held and a provisional conclusion to terminate the services of the officer concerned was arrived at and he was asked to show cause against that. In those circumstances this Court held that as government had purported to take action under Art. 311, the action was bad as the protection envisaged by that Article was not afforded to the servant concerned. The third proposition therefore in that case does not in our opinion lay down that as soon as any kind of enquiry is held into the conduct of a probationer or a temporary servant he is immediately entitled to the protection of Art. 311. All that the third proposition lays down is that if the government chooses to hold an enquiry purporting to act under Art. 311 as was the case in that case, it must afford to the government servant the protection which that Article envisages.21. Gopi Kishore Prasads case, AIR 1960 SC 689 was considered by this Court in a later case in State of Orissa v. Ram Narayan Das, (1961) 1 SCR 606 : (AIR 1961 SC 177 ) which was also a case of a probationer. In Ram Narayan Das case, (1961) 1 SCR 606 : (AIR 1961 SC 177 ) the order was to the effect that the government servant was discharged from service for unsatisfactory work and conduct from the date on which the order was served on him. This Court in Ram Narayan Dass case, (1961) 1 SCR 606 : (AIR 1961 SC 177 ) referred to the rules, which provided that "where it is proposed to terminate the employment of a probationer, whether during or at the end of the period of probation, for any specific fault or on account of his unsuitability for the service, the probationer shall be apprised of the grounds of such proposal and given an opportunity to show cause against it before orders are passed by the authority competent to terminate the employment" and pointed out that action in accordance with the rules would not be hit by Art. 311. Gopi Kishore Prasads case, AIR 1960 SC 689 was distinguished in that case and it was pointed out that the third proposition in Gopi Kishore Prasads case, AIR 1960 SC 689 referred to "an enquiry into allegations of misconduct or inefficiency with a view, if they were found established, to imposing punishment and not to an enquiry whether a probationer should be confirmed", which means that where the Government purports to hold an enquiry under Art. 311 read with the Rules in order to punish an officer, it must afford him the protection provided therein. The third proposition therefore in Gopi Kishore Prasads case, AIR 1960 SC 689 must be read in the context of that case and cannot apply to a case where the government holds what we have called a preliminary enquiry to find out whether a temporary servant should be discharged or not in accordance with his contract or a specific service rule in view of his conduct. The third proposition must be restricted only to those cases whether of temporary government servants or others, where government purports to act under Art. 311 (2) but ends up with a mere order of termination. In such a case the form of the order is immaterial and the termination of service may amount to dismissal or removal. The same view has been taken in Jagdish Miter v. Union of India, C.A. No. 718 of 1962 D/- 20-9-1963: (AIR 1964 SC 449 ).22. We are, therefore, of opinion that on the facts of this case it cannot be said that the order by which the appellants services were terminated under R. 5 was an order inflicting the punishment of dismissal or removal to which Art. 311 (2) applied. It was in our opinion an order which was justified under R. 5 of the Rules and the appellant was not entitled to the protection of Art. 311 (2) in the circumstances.
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(2) on the ground that he must be deemed to be in quasi-permanent service.8. The appellant therefore must be held to be still in temporary service when his services were dispensed with in Augustdo not think it necessary for present purposes to decide whether Art. 16 would apply to rules relating to termination of service. We shall assume for the purposes of this appeal that Art. 16 will apply even in the case of rules relating to termination of service. But we fail to see how the rule which applies to one class of government servants in the matter of termination but does not apply to the other two classes can be said to violate equality of opportunity provided in Art. 16. The classification of government servants into these classes is reasonable and differences in the matter of termination of service between these classes cannot be said to be discriminatory in the circumstances. In particular the very fact that the service of a government servant is purely temporary makes him a class apart from those in permanent service and such government servant cannot necessarily claim all the advantages which a permanent servant has in the matter of security of service. We are therefore of opinion that considering the nature of the employment of a temporary government servant, a provision like that in R. 5 in respect of termination of service is a reasonable provision which cannot be said to deny equality of opportunity provided in Art. 16. The attack therefore on R. 5 on the ground that it is hit by Art. 16 of the Constitution musttermination of the service of a temporary government servant takes place on the ground that his conduct is not satisfactory there can in our opinion be no question of any discrimination. It would be absurd to say that if the service of one temporary servant is terminated on the ground of unsatisfactory conduct the services of all similar employees must also be terminated along with him, irrespective of what their conduct is. Therefore, even though some of those mentioned in the plaint by the appellant were junior to him and did not have as good qualifications as he had and were retained in service, it does not follow that the action taken against the appellant terminating his services was discriminatory for that action was taken on the basis of his unsatisfactory conduct. A question of discrimination may arise in a case of retrenchment on account of abolition of one of several temporary posts of the same kind in one office but can in our opinion never arise in the case of dispensing with the services of a particular temporary employee on account of his conduct being unsatisfactory. We therefore reject the contention that the appellant was denied the protection of Art. 16 and was treated in a discriminatoryare therefore of opinion that on the facts of this case Art. 311 (2) has no application and the appellant was not entitled to the protection of that Article before his services were terminated under R. 5, for the termination of service here does not amount to infliction of the penalty of dismissal orappellant thereafter was transferred to Bombay to give him chance of improvement and it was only six months later when it was found that his work and conduct were still unsatisfactory that government took action under R. 5 and dispensed with his services. On the facts of the present case therefore it cannot be said that the order of dispensing with services of the appellant which was passed in August 1954 was an order punishing the appellant by imposing upon him the penalty of removal orare of opinion that this is reading much more in the proposition than was ever intended by this Court. In that case the Government after some kind of enquiry said in the order terminating the services of the servant concerned that confidential enquires showed that he had the reputation of being a corrupt officer and that there was ample material to show that the report about his resorting to corrupt practices was justified. The order further said that his work was wholly unsatisfactory and in consideration of those matters, it was provisionally decided to terminate the probation and the government servant was asked to show cause why he should not be discharged. His explanation was then considered and the Government finally decided to discharge him. The facts of that case as they appeared from the copy of the government decision showed that the government was actually proceeding on the basis that Art. 311 (2) was applicable in that case and that is why some enquires were held and a provisional conclusion to terminate the services of the officer concerned was arrived at and he was asked to show cause against that. In those circumstances this Court held that as government had purported to take action under Art. 311, the action was bad as the protection envisaged by that Article was not afforded to the servant concerned. The third proposition therefore in that case does not in our opinion lay down that as soon as any kind of enquiry is held into the conduct of a probationer or a temporary servant he is immediately entitled to the protection of Art. 311. All that the third proposition lays down is that if the government chooses to hold an enquiry purporting to act under Art. 311 as was the case in that case, it must afford to the government servant the protection which that Article envisages.We are, therefore, of opinion that on the facts of this case it cannot be said that the order by which the appellants services were terminated under R. 5 was an order inflicting the punishment of dismissal or removal to which Art. 311 (2) applied. It was in our opinion an order which was justified under R. 5 of the Rules and the appellant was not entitled to the protection of Art. 311 (2) in the circumstances.
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Vijay Singh Vs. Shanti Devi & Another | herein and set aside the ex parte decree on the ground that she had not been served properly in the suit and, therefore, she had a reasonable cause for not appearing on the date on which the suit was called up.16. In the present case, the result would be that the respondent No.1, Shanti Devi would be relegated to the position at which she was when she was proceeded against ex parte which would be the date on which the written statement was to be filed. There is no manner of doubt that the effect of setting aside an ex parte decree is to restore the parties to the position at which they were prior to the passing of the decree and relegate them to the position on which they were when the defendant was proceeded against ex parte. The parties are restored to the position existing prior to the date the order proceeding against the defendant ex parte was passed. No authoritative pronouncement of this Court has been placed before us in this regard. However, we may refer to the judgments passed by various High Courts in the case of Kumararu Narayanaru v. Padmanabha Kurup Gopala Kurup, AIR 1953 (TC) 426, Beerankoya Haji v. P.P. Mohammedkutty, AIR 1986 Ker 10 , Shah Bharat Kumar v. M/s. Motilal and Bharulal, AIR 1980 Guj 51 , Aziz Ahmed Patel v. I.A. Patel, AIR 1974 (A.P.) 1, Mst. Lakshmi Devi v. Roongta & Co., AIR 1962 (All.) 381 , Venkatasubbiah v. Lakshminarasimhan, 49 Mad.L.J. 273, which have taken this view.17. It would be pertinent to mention that the mere fact that the ex parte decree has been executed does not disentitle the defendant from applying under Order IX Rule 13, CPC to get the same set aside. Reference may be made to Sm. Sankaribala Dutta v. Sm. Asita Barani Dasi and others, AIR 1977 Calcutta 289 and Mst. Fatima Khatoon v. Swarup Singh, AIR 1984 Calcutta 257. Once the decree is set aside, restitution or restoration can be ordered.18. On behalf of the appellant it has been urged that in Shyam Sunders case (supra), this Court made no exception for ex-parte decrees while setting out the principles which have been quoted hereinabove and the ex parte decree should be treated to be the decree of the court of first instance. That was not an issue raised before the Constitution Bench. This Court was only concerned with the issue whether the amendment to the 1913 Act taking away the right of pre-emption vested in the co-sharer introduced after the decree was passed by the court of first instance and the effect thereof. The issue which is raised in this case was neither directly nor impliedly the subject matter of decision in Shyam Sundars case (supra).19. An ex parte decree is passed when the court believes that the defendant has been served but is not appearing in court despite service of summons. In the present case, the appellate court while setting aside the ex parte decree, has come to the conclusion that the defendant Shanti Devi (respondent no. 1 herein) was not served and, therefore, the court had wrongly proceeded against her ex parte. That finding has been upheld till this Court. In our view, the effect of this would be that the ex parte decree, on its being set aside, would cease to exist and become non-est. After the ex parte decree is set aside, it is no decree in the eyes of law. The decree passed by the trial court on merits should be treated as the decree of the first court. We may make it clear that we are not dealing with those cases where a case has been decided on merits and the decree is set aside by the appellate court on any other ground and the matter remanded to the trial court for decision afresh. We leave that question open.20. Here, we are dealing with a case where the defendant was proceeded against ex parte and that order has been set aside on the ground that she has not been served and, therefore, she has been relegated to the position existing on the date she was proceeded against ex-parte, i.e., 6th April, 1990. After the amendment was introduced on 17th May, 1995, there was no right existing in the plaintiff to file a suit for pre-emption. Since the decree on contest was passed on 27th November, 1999 the plaintiff had no existing right of pre-emption on that date and the suit was rightly dismissed. This decree is the only subsisting decree of the first court.21. Shri Amarendra Sharan, learned senior counsel appearing for the appellant urged that since possession of the property was taken as far back as 7th June, 1990, no restitution can be ordered at this belated stage and, therefore, there is no point in upholding the decree. On the other hand, Shri Shantwanu Singh, learned counsel appearing for the respondent No. 1 has urged that this Court should exercise its power under Article 142 of the Constitution of India and direct that the property be restored to the respondent No. 1, who has been litigating for many years.22. We cannot accept either of the two submissions. The limitation for restitution under the Limitation Act is 12 years. The ex parte decree was set aside on 28th August, 1998 and thereafter, the appellant has been litigating at various levels. If the appellant had obtained stay order(s) during this period, obviously the period for which the stay was granted, would have to be excluded while calculating the period of limitation. This is not the job of this Court. It is for the executing court to decide whether the restitution petition, if any filed, is within the limitation or not. It is only the court which passed the original decree, which can order restitution. Restitution cannot be granted by the Supreme Court, as held in the case of State Bank of Saurashtra v. Chitranjan Rangnath, (1980) 4 SCC 516. | 0[ds]9. In view of the decision of the Constitution Bench, it is not necessary to refer to various other judgments cited before us. A perusal of the principles laid down by the Constitution Bench clearly indicates that theshould possess the right toon three dates:(i) the date of sale;(ii) the date of filing of the suit; and(iii) the date of passing of the decree by the court of first instance only.As far as the first two conditions are concerned, there is no dispute that the appellant possessed the right ofon the date of sale as also on the date of filing of the suit since he was ain the land in question. It is also not disputed that on 10th April, 1990 when the ex parte decree was passed in favour of the appellant he had a valid legal right of12. We are only concerned with clause (a), which provides that if summons are duly served and the defendant does not put in appearance, the court may make an order that the suit would be heard ex parte. In this case, this was the procedure followed and an ex parte decree was passed. There is no manner of doubt that an ex parte decree is also a valid decree. It has the same force as a decree which is passed on contest. As long as the ex parte decree is not recalled or set aside, it is legal and binding upon the parties.The aforesaid provision lays down the procedure for setting aside a decree passed ex parte. The court can set aside an ex parte decree only on two groundsfirstly, that the summons was not duly served; and secondly, that the defendant was prevented by sufficient cause from appearing when the suit was called out. Once an ex parte decree is set aside, it basically means that the parties are relegated to the same position on which they stood before the passing of thedecree.15. In the present case, the stand of the respondent No. 1 is that she was never served in the suit and she came to know about the proceedings only on the date when the decree was executed and the possession of the land was taken from her. On the same day itself she filed an application for setting aside the ex parte decree. This application was dismissed by the trial court. The lower appellate court allowed the appeal filed by the respondent No. 1 herein and set aside the ex parte decree on the ground that she had not been served properly in the suit and, therefore, she had a reasonable cause for not appearing on the date on which the suit was called up.16. In the present case, the result would be that the respondent No.1, Shanti Devi would be relegated to the position at which she was when she was proceeded against ex parte which would be the date on which the written statement was to be filed. There is no manner of doubt that the effect of setting aside an ex parte decree is to restore the parties to the position at which they were prior to the passing of the decree and relegate them to the position on which they were when the defendant was proceeded against ex parte. The parties are restored to the position existing prior to the date the order proceeding against the defendant ex parte was passed. No authoritative pronouncement of this Court has been placed before us in this regard.It would be pertinent to mention that the mere fact that the ex parte decree has been executed does not disentitle the defendant from applying under Order IX Rule 13, CPC to get the same set aside. Reference may be made to Sm. Sankaribala Dutta v. Sm. Asita Barani Dasi and others, AIR 1977 Calcutta 289 and Mst. Fatima Khatoon v. Swarup Singh, AIR 1984 Calcutta 257. Once the decree is set aside, restitution or restoration can be ordered.An ex parte decree is passed when the court believes that the defendant has been served but is not appearing in court despite service of summons. In the present case, the appellate court while setting aside the ex parte decree, has come to the conclusion that the defendant Shanti Devi (respondent no. 1 herein) was not served and, therefore, the court had wrongly proceeded against her ex parte. That finding has been upheld till this Court. In our view, the effect of this would be that the ex parte decree, on its being set aside, would cease to exist and becomeAfter the ex parte decree is set aside, it is no decree in the eyes of law. The decree passed by the trial court on merits should be treated as the decree of the first court. We may make it clear that we are not dealing with those cases where a case has been decided on merits and the decree is set aside by the appellate court on any other ground and the matter remanded to the trial court for decision afresh. We leave that question open.20. Here, we are dealing with a case where the defendant was proceeded against ex parte and that order has been set aside on the ground that she has not been served and, therefore, she has been relegated to the position existing on the date she was proceeded againsti.e., 6th April, 1990. After the amendment was introduced on 17th May, 1995, there was no right existing in the plaintiff to file a suit forSince the decree on contest was passed on 27th November, 1999 the plaintiff had no existing right ofon that date and the suit was rightly dismissed. This decree is the only subsisting decree of the first court.We cannot accept either of the two submissions. The limitation for restitution under the Limitation Act is 12 years. The ex parte decree was set aside on 28th August, 1998 and thereafter, the appellant has been litigating at various levels. If the appellant had obtained stay order(s) during this period, obviously the period for which the stay was granted, would have to be excluded while calculating the period of limitation. This is not the job of this Court. It is for the executing court to decide whether the restitution petition, if any filed, is within the limitation or not. It is only the court which passed the original decree, which can order restitution. Restitution cannot be granted by the Supreme Court, as held in the case of State Bank of Saurashtra v. Chitranjan Rangnath, (1980) 4 SCC 516. | 0 | 3,249 | 1,207 | ### Instruction:
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herein and set aside the ex parte decree on the ground that she had not been served properly in the suit and, therefore, she had a reasonable cause for not appearing on the date on which the suit was called up.16. In the present case, the result would be that the respondent No.1, Shanti Devi would be relegated to the position at which she was when she was proceeded against ex parte which would be the date on which the written statement was to be filed. There is no manner of doubt that the effect of setting aside an ex parte decree is to restore the parties to the position at which they were prior to the passing of the decree and relegate them to the position on which they were when the defendant was proceeded against ex parte. The parties are restored to the position existing prior to the date the order proceeding against the defendant ex parte was passed. No authoritative pronouncement of this Court has been placed before us in this regard. However, we may refer to the judgments passed by various High Courts in the case of Kumararu Narayanaru v. Padmanabha Kurup Gopala Kurup, AIR 1953 (TC) 426, Beerankoya Haji v. P.P. Mohammedkutty, AIR 1986 Ker 10 , Shah Bharat Kumar v. M/s. Motilal and Bharulal, AIR 1980 Guj 51 , Aziz Ahmed Patel v. I.A. Patel, AIR 1974 (A.P.) 1, Mst. Lakshmi Devi v. Roongta & Co., AIR 1962 (All.) 381 , Venkatasubbiah v. Lakshminarasimhan, 49 Mad.L.J. 273, which have taken this view.17. It would be pertinent to mention that the mere fact that the ex parte decree has been executed does not disentitle the defendant from applying under Order IX Rule 13, CPC to get the same set aside. Reference may be made to Sm. Sankaribala Dutta v. Sm. Asita Barani Dasi and others, AIR 1977 Calcutta 289 and Mst. Fatima Khatoon v. Swarup Singh, AIR 1984 Calcutta 257. Once the decree is set aside, restitution or restoration can be ordered.18. On behalf of the appellant it has been urged that in Shyam Sunders case (supra), this Court made no exception for ex-parte decrees while setting out the principles which have been quoted hereinabove and the ex parte decree should be treated to be the decree of the court of first instance. That was not an issue raised before the Constitution Bench. This Court was only concerned with the issue whether the amendment to the 1913 Act taking away the right of pre-emption vested in the co-sharer introduced after the decree was passed by the court of first instance and the effect thereof. The issue which is raised in this case was neither directly nor impliedly the subject matter of decision in Shyam Sundars case (supra).19. An ex parte decree is passed when the court believes that the defendant has been served but is not appearing in court despite service of summons. In the present case, the appellate court while setting aside the ex parte decree, has come to the conclusion that the defendant Shanti Devi (respondent no. 1 herein) was not served and, therefore, the court had wrongly proceeded against her ex parte. That finding has been upheld till this Court. In our view, the effect of this would be that the ex parte decree, on its being set aside, would cease to exist and become non-est. After the ex parte decree is set aside, it is no decree in the eyes of law. The decree passed by the trial court on merits should be treated as the decree of the first court. We may make it clear that we are not dealing with those cases where a case has been decided on merits and the decree is set aside by the appellate court on any other ground and the matter remanded to the trial court for decision afresh. We leave that question open.20. Here, we are dealing with a case where the defendant was proceeded against ex parte and that order has been set aside on the ground that she has not been served and, therefore, she has been relegated to the position existing on the date she was proceeded against ex-parte, i.e., 6th April, 1990. After the amendment was introduced on 17th May, 1995, there was no right existing in the plaintiff to file a suit for pre-emption. Since the decree on contest was passed on 27th November, 1999 the plaintiff had no existing right of pre-emption on that date and the suit was rightly dismissed. This decree is the only subsisting decree of the first court.21. Shri Amarendra Sharan, learned senior counsel appearing for the appellant urged that since possession of the property was taken as far back as 7th June, 1990, no restitution can be ordered at this belated stage and, therefore, there is no point in upholding the decree. On the other hand, Shri Shantwanu Singh, learned counsel appearing for the respondent No. 1 has urged that this Court should exercise its power under Article 142 of the Constitution of India and direct that the property be restored to the respondent No. 1, who has been litigating for many years.22. We cannot accept either of the two submissions. The limitation for restitution under the Limitation Act is 12 years. The ex parte decree was set aside on 28th August, 1998 and thereafter, the appellant has been litigating at various levels. If the appellant had obtained stay order(s) during this period, obviously the period for which the stay was granted, would have to be excluded while calculating the period of limitation. This is not the job of this Court. It is for the executing court to decide whether the restitution petition, if any filed, is within the limitation or not. It is only the court which passed the original decree, which can order restitution. Restitution cannot be granted by the Supreme Court, as held in the case of State Bank of Saurashtra v. Chitranjan Rangnath, (1980) 4 SCC 516.
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sale as also on the date of filing of the suit since he was ain the land in question. It is also not disputed that on 10th April, 1990 when the ex parte decree was passed in favour of the appellant he had a valid legal right of12. We are only concerned with clause (a), which provides that if summons are duly served and the defendant does not put in appearance, the court may make an order that the suit would be heard ex parte. In this case, this was the procedure followed and an ex parte decree was passed. There is no manner of doubt that an ex parte decree is also a valid decree. It has the same force as a decree which is passed on contest. As long as the ex parte decree is not recalled or set aside, it is legal and binding upon the parties.The aforesaid provision lays down the procedure for setting aside a decree passed ex parte. The court can set aside an ex parte decree only on two groundsfirstly, that the summons was not duly served; and secondly, that the defendant was prevented by sufficient cause from appearing when the suit was called out. Once an ex parte decree is set aside, it basically means that the parties are relegated to the same position on which they stood before the passing of thedecree.15. In the present case, the stand of the respondent No. 1 is that she was never served in the suit and she came to know about the proceedings only on the date when the decree was executed and the possession of the land was taken from her. On the same day itself she filed an application for setting aside the ex parte decree. This application was dismissed by the trial court. The lower appellate court allowed the appeal filed by the respondent No. 1 herein and set aside the ex parte decree on the ground that she had not been served properly in the suit and, therefore, she had a reasonable cause for not appearing on the date on which the suit was called up.16. In the present case, the result would be that the respondent No.1, Shanti Devi would be relegated to the position at which she was when she was proceeded against ex parte which would be the date on which the written statement was to be filed. There is no manner of doubt that the effect of setting aside an ex parte decree is to restore the parties to the position at which they were prior to the passing of the decree and relegate them to the position on which they were when the defendant was proceeded against ex parte. The parties are restored to the position existing prior to the date the order proceeding against the defendant ex parte was passed. No authoritative pronouncement of this Court has been placed before us in this regard.It would be pertinent to mention that the mere fact that the ex parte decree has been executed does not disentitle the defendant from applying under Order IX Rule 13, CPC to get the same set aside. Reference may be made to Sm. Sankaribala Dutta v. Sm. Asita Barani Dasi and others, AIR 1977 Calcutta 289 and Mst. Fatima Khatoon v. Swarup Singh, AIR 1984 Calcutta 257. Once the decree is set aside, restitution or restoration can be ordered.An ex parte decree is passed when the court believes that the defendant has been served but is not appearing in court despite service of summons. In the present case, the appellate court while setting aside the ex parte decree, has come to the conclusion that the defendant Shanti Devi (respondent no. 1 herein) was not served and, therefore, the court had wrongly proceeded against her ex parte. That finding has been upheld till this Court. In our view, the effect of this would be that the ex parte decree, on its being set aside, would cease to exist and becomeAfter the ex parte decree is set aside, it is no decree in the eyes of law. The decree passed by the trial court on merits should be treated as the decree of the first court. We may make it clear that we are not dealing with those cases where a case has been decided on merits and the decree is set aside by the appellate court on any other ground and the matter remanded to the trial court for decision afresh. We leave that question open.20. Here, we are dealing with a case where the defendant was proceeded against ex parte and that order has been set aside on the ground that she has not been served and, therefore, she has been relegated to the position existing on the date she was proceeded againsti.e., 6th April, 1990. After the amendment was introduced on 17th May, 1995, there was no right existing in the plaintiff to file a suit forSince the decree on contest was passed on 27th November, 1999 the plaintiff had no existing right ofon that date and the suit was rightly dismissed. This decree is the only subsisting decree of the first court.We cannot accept either of the two submissions. The limitation for restitution under the Limitation Act is 12 years. The ex parte decree was set aside on 28th August, 1998 and thereafter, the appellant has been litigating at various levels. If the appellant had obtained stay order(s) during this period, obviously the period for which the stay was granted, would have to be excluded while calculating the period of limitation. This is not the job of this Court. It is for the executing court to decide whether the restitution petition, if any filed, is within the limitation or not. It is only the court which passed the original decree, which can order restitution. Restitution cannot be granted by the Supreme Court, as held in the case of State Bank of Saurashtra v. Chitranjan Rangnath, (1980) 4 SCC 516.
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Anglo-French Textile Co. Ltd Vs. Commissioner Of Income-Tax, Madras, | the Indian Income-tax Act has no relevance to the determination of this question because it is mainly concerned with income which is deemed to have arisen or accrued and not with income which actually arises or accrues within taxable territories. Section 42 (3) also is a part of the scheme which is enacted in Section 42 and cannot help in the determination of the question, before us. As a matter of fact the use of the words "under Section 42(3)" used in the Question No. 2 as reframed by us was not appropriate and the only question which should have been sent to the High Court was"If not, should only those profits determined as attributable to the operations carried out in India be taken into account for applying the test laid down in Section 4-A(c)(b)".12. If therefore Section 42(3) has nothing to do with the determination of the income arising in the taxable territories as distinguished from the income arising without the taxable territories as understood in Section 4-A (c)(b) of the Act what we have got to consider is whether there is anything in the Act which prevents the application of the general principle of apportionment of income, profits or gains between those which are derived from business operations carried on within taxable territories and those which are derived from business operations carried on without taxable territories. The contention which was advanced by Shri Porus A. Mehta on behalf of the Respondents in this behalf, viz., that the word "arise" was the only word used in Section 4-A (c)(b) and the word "accrue" did not find any place therein, that there was a distinction between the conception of arising and the conception of accrual and that the apportionment of the income was appropriate only in cases where the income arose and was inappropriate in cases where the income accrued, was sufficiently repelled in the judgment in - AIR 1950 SC 134 at p. 145 (D), where it was observed:"Whether the words "derive" and "produce" are or are not synonymous with the words "accrue" or "arise", it can be said without hesitation that the words "accrue" or "arise" though not defined in the Act are certainly synonymous and are used in the Act are certainly synonymous and are used in the sense of "bringing in as a natural result". Strictly speaking, the word "accrue" is not synonymous with "arise", the former connoting idea of growth or accumulation and the latter of the growth or accumulation with a tangible shape so as to be receivable. There is distinction in the dictionary meaning of these words, but throughout the Act they seem to denote the same idea or ideas very similar and the difference only lies in this that one is more appropriate when applied to a particular case. In the case of a composite business, i.e., in the case of a person who is carrying on a number of businesses, it is always difficult to decide as to the place of the accrual of profits and their apportionment inter se. For instance, where a person carries on manufacture, sale, export and import, it is not possible to say that the place where the profits accrue to him is the place of sale.The profits received relate firstly to his business as a manufacturer, secondly to his trading operations, and thirdly to his business of import and export. Profit or loss has to be apportioned between these business in a business like manner and according to well-established principles of accountancy. In such cases it will be doing no violence to the meaning of the words "accrue" or "arise" if the profits attributable to the manufacturing business are said to arise or accrue at the place where the manufacture is being done and the profits which arise by reason of the sale are said to arise at the place where the sales are made and the profits in respect of the import and export business is conducted. This apportionment of profits between a number of businesses which are carried on by the same person at different places determines also the place of the accrual of profits".The phraseology of Section 42 (3) of the Act also repels the contention in so far as the profits and gains of the business which are referred to therein and which are capable of apportionment as therein mentioned are deemed to accrue or arise in the taxable territories thus using the words "accrue" and "arise" as synonymous with each other.13. The above passage is also sufficient in our opinion to establish that the apportionment of income, profits or gains between those arising from business operations carried on in taxable territories and those arising from business operations carried on without the taxable territories is based not on the applicability of Section 42(3) of the Act but on general principles of apportionment of income, profit or gains. That was really the ratio of the judgment of the majority in the - Commr. of Income-tax, Bombay v. Ahmedbhai Umarbhai and Co., Bombay (D) and any attempt to distinguish that case from the present one by having resort to the statutory provisions of the Excess profits Tax Act is really futile. We are accordingly of the opinion that the answer given by the High Court to the Question No. 2 also was correct.14. The appeal before us will accordingly be allowed and the answers to the Questions Nos. 1 and 2 reframed by us will be as under.15. Question No. - In the negative;and Question No. 2 - The income received in British India cannot be said to wholly arise in India within the meaning of Section 4-A (c)(b) of the Act and that there should be allocation of the income between the various business operations of the assessee company demarcating the income arising in the taxable territories in the particular year from the income arising without taxable territories in that year for the purposes of Section 4-A (c) (b) of the Act. | 0[ds]It was thus contended that the income arising in British India in the year of account did not exceed its income arising without British India and that therefore the assessee wasin British India. This calculation of profits at the rate of 10 per cent. on British Indian sales did not make any allocation between manufacturing profits and merchanting profits and all the profits arising out of British Indian sales were shown in one lump sum. TheOfficer took it as settled law that the profits arose in the country in which the sales took place and as the bulk of the sales had taken place in British India the bulk of the profits accrued or arose in British India. He held that the provisions of Section 42 (3) would apply only where the profits arose outside British India but which by virtue of Section 42 (1) were deemed to accrue or arise in British India, and that it did not apply where the profits actually arose in British India by the sale of goods in British India.He therefore held that the entire profits on sales made in British India actually arose in British India and were liable to tax under Section 4 (1) (c). On a conclusion that the income of the assessee arising in British India in the accounting year exceeded its income arising without British India under Section(c). The assessee was also held ordinarily resident in British India under Section(c) and he assessed the Company accordingly on that basis. That appellate Assistant Commissioner also proceeded on that basis and confirmed the order of theOfficer. He was however further of the opinion that the entire profits were received where the sale proceeds were received and the assessee was therefore liable to tax under Section 4 (1) (a) also.This conclusion was arrived at by him relying upon two decisions of their Lordships of the PrivyRailway Co. v. Commr. ofMadras, 5 ITC 363 (PC) (A) andx, Madras v. S. L. Mathias, AIR 1939 PCdo not accept this contention of the Respondent. Section(c) (b) is concerned with the income arising in the taxable territories in a particular year exceeding the income arising without the taxable territories in that year and the very words of the section are capable of being construed as also contemplating a state of affairs where there may have to be a division or apportionment between the income arising in taxable territories and the income arising without the taxable territories in the particular year.The whole of the argument urged before us on behalf of the Respondent was aimed at establishing that the scheme of the IndianAct was not to tax the source of income but the income profits or gains from whatever source derived which were received or were deemed to be received in the taxable territories during the particular year and that it was immaterial whether the income, profits or gains were derived from business operations carried on in taxable territories or without the taxable territories. This argument was possible when the decisions which held that income, profits or gains arose or accrued at the place where the sales took place were good law, because then there was no question of apportionment of income, profits or gains arising from the business operations carried on in taxable territories and income, profits or gains arising from business operations carried on without taxable territories.The moment however it was held, as it was done in thex, Bombay v. Ahmedbhai Umarbhai and Co., Bombay (D) that though profits may not be realised until a manufactured article was sold profits were not wholly made by the act of sale and did not necessarily accrue at the place of sale and to the extent profits were attributable to the manufacturing operations profits accrued at the place where business operations were carried on, those decisions went by the board. The question whether a particular part of the income, profits or gains arose or accrued within taxable territories or without taxable territories would have to be decided having regard to the general principles as to where the income, profits or gains could be said to arise or accrue.Section 42 of the IndianAct has no relevance to the determination of this question because it is mainly concerned with income which is deemed to have arisen or accrued and not with income which actually arises or accrues within taxable territories. Section 42 (3) also is a part of the scheme which is enacted in Section 42 and cannot help in the determination of the question, before us. As a matter of fact the use of the words "under Section 42(3)" used in the Question No. 2 as reframed by us was not appropriate and the only question which should have been sent to the High Courtnot, should only those profits determined as attributable to the operations carried out in India be taken into account for applying the test laid down in Sectionphraseology of Section 42 (3) of the Act also repels the contention in so far as the profits and gains of the business which are referred to therein and which are capable of apportionment as therein mentioned are deemed to accrue or arise in the taxable territories thus using the words "accrue" and "arise" as synonymous with each other.13. The above passage is also sufficient in our opinion to establish that the apportionment of income, profits or gains between those arising from business operations carried on in taxable territories and those arising from business operations carried on without the taxable territories is based not on the applicability of Section 42(3) of the Act but on general principles of apportionment of income, profit or gains. That was really the ratio of the judgment of the majority in thex, Bombay v. Ahmedbhai Umarbhai and Co., Bombay (D) and any attempt to distinguish that case from the present one by having resort to the statutory provisions of the Excess profits Tax Act is really futile. We are accordingly of the opinion that the answer given by the High Court to the Question No. 2 also was correct.14. The appeal before us will accordingly be allowed and the answers to the Questions Nos. 1 and 2 reframed by us will be as under.15. Question No.In the negative;and Question No. 2The income received in British India cannot be said to wholly arise in India within the meaning of Section(c)(b) of the Act and that there should be allocation of the income between the various business operations of the assessee company demarcating the income arising in the taxable territories in the particular year from the income arising without taxable territories in that year for the purposes of Section(c) (b) of the Act. | 0 | 4,749 | 1,228 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
### Input:
the Indian Income-tax Act has no relevance to the determination of this question because it is mainly concerned with income which is deemed to have arisen or accrued and not with income which actually arises or accrues within taxable territories. Section 42 (3) also is a part of the scheme which is enacted in Section 42 and cannot help in the determination of the question, before us. As a matter of fact the use of the words "under Section 42(3)" used in the Question No. 2 as reframed by us was not appropriate and the only question which should have been sent to the High Court was"If not, should only those profits determined as attributable to the operations carried out in India be taken into account for applying the test laid down in Section 4-A(c)(b)".12. If therefore Section 42(3) has nothing to do with the determination of the income arising in the taxable territories as distinguished from the income arising without the taxable territories as understood in Section 4-A (c)(b) of the Act what we have got to consider is whether there is anything in the Act which prevents the application of the general principle of apportionment of income, profits or gains between those which are derived from business operations carried on within taxable territories and those which are derived from business operations carried on without taxable territories. The contention which was advanced by Shri Porus A. Mehta on behalf of the Respondents in this behalf, viz., that the word "arise" was the only word used in Section 4-A (c)(b) and the word "accrue" did not find any place therein, that there was a distinction between the conception of arising and the conception of accrual and that the apportionment of the income was appropriate only in cases where the income arose and was inappropriate in cases where the income accrued, was sufficiently repelled in the judgment in - AIR 1950 SC 134 at p. 145 (D), where it was observed:"Whether the words "derive" and "produce" are or are not synonymous with the words "accrue" or "arise", it can be said without hesitation that the words "accrue" or "arise" though not defined in the Act are certainly synonymous and are used in the Act are certainly synonymous and are used in the sense of "bringing in as a natural result". Strictly speaking, the word "accrue" is not synonymous with "arise", the former connoting idea of growth or accumulation and the latter of the growth or accumulation with a tangible shape so as to be receivable. There is distinction in the dictionary meaning of these words, but throughout the Act they seem to denote the same idea or ideas very similar and the difference only lies in this that one is more appropriate when applied to a particular case. In the case of a composite business, i.e., in the case of a person who is carrying on a number of businesses, it is always difficult to decide as to the place of the accrual of profits and their apportionment inter se. For instance, where a person carries on manufacture, sale, export and import, it is not possible to say that the place where the profits accrue to him is the place of sale.The profits received relate firstly to his business as a manufacturer, secondly to his trading operations, and thirdly to his business of import and export. Profit or loss has to be apportioned between these business in a business like manner and according to well-established principles of accountancy. In such cases it will be doing no violence to the meaning of the words "accrue" or "arise" if the profits attributable to the manufacturing business are said to arise or accrue at the place where the manufacture is being done and the profits which arise by reason of the sale are said to arise at the place where the sales are made and the profits in respect of the import and export business is conducted. This apportionment of profits between a number of businesses which are carried on by the same person at different places determines also the place of the accrual of profits".The phraseology of Section 42 (3) of the Act also repels the contention in so far as the profits and gains of the business which are referred to therein and which are capable of apportionment as therein mentioned are deemed to accrue or arise in the taxable territories thus using the words "accrue" and "arise" as synonymous with each other.13. The above passage is also sufficient in our opinion to establish that the apportionment of income, profits or gains between those arising from business operations carried on in taxable territories and those arising from business operations carried on without the taxable territories is based not on the applicability of Section 42(3) of the Act but on general principles of apportionment of income, profit or gains. That was really the ratio of the judgment of the majority in the - Commr. of Income-tax, Bombay v. Ahmedbhai Umarbhai and Co., Bombay (D) and any attempt to distinguish that case from the present one by having resort to the statutory provisions of the Excess profits Tax Act is really futile. We are accordingly of the opinion that the answer given by the High Court to the Question No. 2 also was correct.14. The appeal before us will accordingly be allowed and the answers to the Questions Nos. 1 and 2 reframed by us will be as under.15. Question No. - In the negative;and Question No. 2 - The income received in British India cannot be said to wholly arise in India within the meaning of Section 4-A (c)(b) of the Act and that there should be allocation of the income between the various business operations of the assessee company demarcating the income arising in the taxable territories in the particular year from the income arising without taxable territories in that year for the purposes of Section 4-A (c) (b) of the Act.
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India. He held that the provisions of Section 42 (3) would apply only where the profits arose outside British India but which by virtue of Section 42 (1) were deemed to accrue or arise in British India, and that it did not apply where the profits actually arose in British India by the sale of goods in British India.He therefore held that the entire profits on sales made in British India actually arose in British India and were liable to tax under Section 4 (1) (c). On a conclusion that the income of the assessee arising in British India in the accounting year exceeded its income arising without British India under Section(c). The assessee was also held ordinarily resident in British India under Section(c) and he assessed the Company accordingly on that basis. That appellate Assistant Commissioner also proceeded on that basis and confirmed the order of theOfficer. He was however further of the opinion that the entire profits were received where the sale proceeds were received and the assessee was therefore liable to tax under Section 4 (1) (a) also.This conclusion was arrived at by him relying upon two decisions of their Lordships of the PrivyRailway Co. v. Commr. ofMadras, 5 ITC 363 (PC) (A) andx, Madras v. S. L. Mathias, AIR 1939 PCdo not accept this contention of the Respondent. Section(c) (b) is concerned with the income arising in the taxable territories in a particular year exceeding the income arising without the taxable territories in that year and the very words of the section are capable of being construed as also contemplating a state of affairs where there may have to be a division or apportionment between the income arising in taxable territories and the income arising without the taxable territories in the particular year.The whole of the argument urged before us on behalf of the Respondent was aimed at establishing that the scheme of the IndianAct was not to tax the source of income but the income profits or gains from whatever source derived which were received or were deemed to be received in the taxable territories during the particular year and that it was immaterial whether the income, profits or gains were derived from business operations carried on in taxable territories or without the taxable territories. This argument was possible when the decisions which held that income, profits or gains arose or accrued at the place where the sales took place were good law, because then there was no question of apportionment of income, profits or gains arising from the business operations carried on in taxable territories and income, profits or gains arising from business operations carried on without taxable territories.The moment however it was held, as it was done in thex, Bombay v. Ahmedbhai Umarbhai and Co., Bombay (D) that though profits may not be realised until a manufactured article was sold profits were not wholly made by the act of sale and did not necessarily accrue at the place of sale and to the extent profits were attributable to the manufacturing operations profits accrued at the place where business operations were carried on, those decisions went by the board. The question whether a particular part of the income, profits or gains arose or accrued within taxable territories or without taxable territories would have to be decided having regard to the general principles as to where the income, profits or gains could be said to arise or accrue.Section 42 of the IndianAct has no relevance to the determination of this question because it is mainly concerned with income which is deemed to have arisen or accrued and not with income which actually arises or accrues within taxable territories. Section 42 (3) also is a part of the scheme which is enacted in Section 42 and cannot help in the determination of the question, before us. As a matter of fact the use of the words "under Section 42(3)" used in the Question No. 2 as reframed by us was not appropriate and the only question which should have been sent to the High Courtnot, should only those profits determined as attributable to the operations carried out in India be taken into account for applying the test laid down in Sectionphraseology of Section 42 (3) of the Act also repels the contention in so far as the profits and gains of the business which are referred to therein and which are capable of apportionment as therein mentioned are deemed to accrue or arise in the taxable territories thus using the words "accrue" and "arise" as synonymous with each other.13. The above passage is also sufficient in our opinion to establish that the apportionment of income, profits or gains between those arising from business operations carried on in taxable territories and those arising from business operations carried on without the taxable territories is based not on the applicability of Section 42(3) of the Act but on general principles of apportionment of income, profit or gains. That was really the ratio of the judgment of the majority in thex, Bombay v. Ahmedbhai Umarbhai and Co., Bombay (D) and any attempt to distinguish that case from the present one by having resort to the statutory provisions of the Excess profits Tax Act is really futile. We are accordingly of the opinion that the answer given by the High Court to the Question No. 2 also was correct.14. The appeal before us will accordingly be allowed and the answers to the Questions Nos. 1 and 2 reframed by us will be as under.15. Question No.In the negative;and Question No. 2The income received in British India cannot be said to wholly arise in India within the meaning of Section(c)(b) of the Act and that there should be allocation of the income between the various business operations of the assessee company demarcating the income arising in the taxable territories in the particular year from the income arising without taxable territories in that year for the purposes of Section(c) (b) of the Act.
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Master Lal Mohd. Sabir Vs. State of J. & K. & Others | was supplying information to the said officers till August 1965 when the Razakars entered into Mendhar and actively collaborated with Razakars in attacking the security post at Dhirana where grave damage to the life and property was done. It is further stated that the petitioner had crossed over to Pakistan after cease-fire in October, 1965 along with the raiders, and his relations referred to above were at the border post and it had been reliably reported that they were giving to the petitioner intensive training for spying and had sent him back in Mendhar area in June, 1970. During the period from January, 1970, up to August, 1970, his activities were watched and it was reported that he was working as a Pakistan agent and was securing information about the deployment of the security force from Mendhar area and supplied the said information to his relations. It is further stated that the various reports collected in this manner were brought to the notice of the District Magistrate who after having satisfied about the necessary detention of the petitioner, passed the order of detention against the petitioner. The reinstatement of the petitioner was explained on the ground that it was made without any consultation with the Counter - Intelligence Branch of the State Government.3. It appears that while in Pakistan, the petitioner passed his B.A. examination from the Punjab University, Lahore, as shown by the certificate which was produced at the time of the reinstatement. It is urged in the affidavit that this was inconsistent with the petitioners story that he was detained by the Pakistan authorities. The Government submits that the petitioner went over to Pakistan side of his own accord in 1965 and pursued his studies besides preparing himself to do such activities which were prejudicial to the security of the State. Darshan Singh, D.S.P. in his affidavit has denied all the allegations made against him. It is not necessary to refer to them in detail. Sumitter Singh, Deputy Superintendent of Police, C.I.D. has also filed an affidavit. He denied that there was any illegal arrest of the petitioner in June, 1970. He states that the petitioner was arrested on that date in case No. FIR No. 7/70 under Section 2/3-A E.I.M.C.O. (Egress & Internal Movement Control Order) and under Section 4. E.O.A by Mendhar Police on July 13, 1970, and was remanded to police custody for a week. On July 20, 1970, after the expiry of the remand, further remand for one week was taken from Magistrate, Jammu. He further states that the petitioner remained in police custody, Jammu from July, 18, 1970 to July 27, 1970 and it was during this period of investigations that it was confirmed that he was a regular Pakistan Agent and Pakistan Spy since 1965. The State has also filed a letter indicating that the military authorities were of opinion that they suspected that the petitioner was a planted agent of Pakistan. On these facts it is impossible to say that the order of detention has been passed mala fide.4. The petitioner has raised certain objections as the from of the affidavits of the Deputy Secretary. The Deputy Secretary obviously can only swear to the affidavit as to facts appearing from the record. He cannot possibly swear the affidavit based on his personal knowledge unless the fact is in his personal knowledge.5. The next point taken by the petitioner was that it was a case of mistaken identity of the petitioner. He submitted that the detention order does not mention that he is a teacher, and there are a number of people with the same whose fathers bear the name. But from the affidavits filed we are unable to say that there was any mistaken identity. He also controverted certain statements in the affidavit of the D.S.P. that land was allotted to him from village Arri, Tehsil Mendhar. We are not concerned with this fact as it does not bear on the question of identity.6. Coming to the question of the illegality of the second order dated August 3, 1970 of the District Magistrate, Poonch, the petitioner attacked that part of the order where it is stated that it is against the public interest to disclose the grounds of detention. He referred to the second para of the said order which reads as under :"Now, therefore, in pursuance of Section 8 read with Section 13-A of Said Act, I hereby direct that the said Lal Mohd. be informed it is against the security of the State to disclose to him the grounds on which his detention order was made."7. The petitioner said that because the words "against the security of the State" instead of against the public interest have been used in the second para, the order is illegal. We are to see any force in this contention.8. Section 8(2) of the Jammu &m Kashmir Preventive Detention Act, 1964 provides that :"Nothing in sub-section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose."9. The District Magistrate first stated that the considered it against the public interest to disclose the grounds of detention; them in the second para; he chose to describe the particular public interest as security of the State. We see nothing wrong in the form used by the District Magistrate. If a thing is not disclosed because it would be against the security of State it is tantamount to saying that it would be against the public interest not to disclose it. The petitioner further submitted that the words "security of the State" do not exist in the Constitution. We referred him to Article 19(2) of the Constitution in that connection.10. The petitioner further submitted that the detention order does not mention that the Act was amended in 1967. There is nothing in this point, because when the Kashmir Preventive Detention Act, 1964 is mentioned in the detention order it means Act as existing on that date, including the amendments. | 0[ds]7. The petitioner said that because the words "against the security of the State" instead of against the public interest have been used in the second para, the order is illegal. We are to see any force in thissee nothing wrong in the form used by the District Magistrate. If a thing is not disclosed because it would be against the security of State it is tantamount to saying that it would be against the public interest not to disclose it. The petitioner further submitted that the words "security of the State" do not exist in the Constitution. We referred him to Article 19(2) of the Constitution in that connection.10. The petitioner further submitted that the detention order does not mention that the Act was amended in 1967. There is nothing in this point, because when the Kashmir Preventive Detention Act, 1964 is mentioned in the detention order it means Act as existing on that date, including the amendments. | 0 | 1,988 | 182 | ### Instruction:
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was supplying information to the said officers till August 1965 when the Razakars entered into Mendhar and actively collaborated with Razakars in attacking the security post at Dhirana where grave damage to the life and property was done. It is further stated that the petitioner had crossed over to Pakistan after cease-fire in October, 1965 along with the raiders, and his relations referred to above were at the border post and it had been reliably reported that they were giving to the petitioner intensive training for spying and had sent him back in Mendhar area in June, 1970. During the period from January, 1970, up to August, 1970, his activities were watched and it was reported that he was working as a Pakistan agent and was securing information about the deployment of the security force from Mendhar area and supplied the said information to his relations. It is further stated that the various reports collected in this manner were brought to the notice of the District Magistrate who after having satisfied about the necessary detention of the petitioner, passed the order of detention against the petitioner. The reinstatement of the petitioner was explained on the ground that it was made without any consultation with the Counter - Intelligence Branch of the State Government.3. It appears that while in Pakistan, the petitioner passed his B.A. examination from the Punjab University, Lahore, as shown by the certificate which was produced at the time of the reinstatement. It is urged in the affidavit that this was inconsistent with the petitioners story that he was detained by the Pakistan authorities. The Government submits that the petitioner went over to Pakistan side of his own accord in 1965 and pursued his studies besides preparing himself to do such activities which were prejudicial to the security of the State. Darshan Singh, D.S.P. in his affidavit has denied all the allegations made against him. It is not necessary to refer to them in detail. Sumitter Singh, Deputy Superintendent of Police, C.I.D. has also filed an affidavit. He denied that there was any illegal arrest of the petitioner in June, 1970. He states that the petitioner was arrested on that date in case No. FIR No. 7/70 under Section 2/3-A E.I.M.C.O. (Egress & Internal Movement Control Order) and under Section 4. E.O.A by Mendhar Police on July 13, 1970, and was remanded to police custody for a week. On July 20, 1970, after the expiry of the remand, further remand for one week was taken from Magistrate, Jammu. He further states that the petitioner remained in police custody, Jammu from July, 18, 1970 to July 27, 1970 and it was during this period of investigations that it was confirmed that he was a regular Pakistan Agent and Pakistan Spy since 1965. The State has also filed a letter indicating that the military authorities were of opinion that they suspected that the petitioner was a planted agent of Pakistan. On these facts it is impossible to say that the order of detention has been passed mala fide.4. The petitioner has raised certain objections as the from of the affidavits of the Deputy Secretary. The Deputy Secretary obviously can only swear to the affidavit as to facts appearing from the record. He cannot possibly swear the affidavit based on his personal knowledge unless the fact is in his personal knowledge.5. The next point taken by the petitioner was that it was a case of mistaken identity of the petitioner. He submitted that the detention order does not mention that he is a teacher, and there are a number of people with the same whose fathers bear the name. But from the affidavits filed we are unable to say that there was any mistaken identity. He also controverted certain statements in the affidavit of the D.S.P. that land was allotted to him from village Arri, Tehsil Mendhar. We are not concerned with this fact as it does not bear on the question of identity.6. Coming to the question of the illegality of the second order dated August 3, 1970 of the District Magistrate, Poonch, the petitioner attacked that part of the order where it is stated that it is against the public interest to disclose the grounds of detention. He referred to the second para of the said order which reads as under :"Now, therefore, in pursuance of Section 8 read with Section 13-A of Said Act, I hereby direct that the said Lal Mohd. be informed it is against the security of the State to disclose to him the grounds on which his detention order was made."7. The petitioner said that because the words "against the security of the State" instead of against the public interest have been used in the second para, the order is illegal. We are to see any force in this contention.8. Section 8(2) of the Jammu &m Kashmir Preventive Detention Act, 1964 provides that :"Nothing in sub-section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose."9. The District Magistrate first stated that the considered it against the public interest to disclose the grounds of detention; them in the second para; he chose to describe the particular public interest as security of the State. We see nothing wrong in the form used by the District Magistrate. If a thing is not disclosed because it would be against the security of State it is tantamount to saying that it would be against the public interest not to disclose it. The petitioner further submitted that the words "security of the State" do not exist in the Constitution. We referred him to Article 19(2) of the Constitution in that connection.10. The petitioner further submitted that the detention order does not mention that the Act was amended in 1967. There is nothing in this point, because when the Kashmir Preventive Detention Act, 1964 is mentioned in the detention order it means Act as existing on that date, including the amendments.
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7. The petitioner said that because the words "against the security of the State" instead of against the public interest have been used in the second para, the order is illegal. We are to see any force in thissee nothing wrong in the form used by the District Magistrate. If a thing is not disclosed because it would be against the security of State it is tantamount to saying that it would be against the public interest not to disclose it. The petitioner further submitted that the words "security of the State" do not exist in the Constitution. We referred him to Article 19(2) of the Constitution in that connection.10. The petitioner further submitted that the detention order does not mention that the Act was amended in 1967. There is nothing in this point, because when the Kashmir Preventive Detention Act, 1964 is mentioned in the detention order it means Act as existing on that date, including the amendments.
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JAIPRAKASH ASSOCIATES LTD. (JAL)THROUGH ITS DIRECTOR Vs. TEHRI HYDRO DEVELOPMENT CORPORATION INDIA LTD. (THDC )INDIA LTD.THROUGH ITS DIRECTOR | under Clause G1.09 in this case being absolute, the decision in Harish Chandra [(1999) 1 SCC 63] will not assist the appellant in any manner. 20. It is also pertinent to note that the judgment in Sayeed Ahmed and Company distinguishing the restrictive wording in Harish Chandra has been consistently followed by this Court in number of cases thereafter. In this scenario, when we find that Harish Chandra case which is of the vintage of 1940 Act and is distinguished in Sayeed Ahmed and Company coupled with the fact that the ratio of Sayeed Ahmed and Company has been consistently followed, there is no reason to deviate from the construction to Clauses 50 and 51 of the GCC given by the arbitral tribunal in the first instance as well as the High Court. Above all, these clauses is pari materia with with Clauses 1.2.14 and 1.2.15 of GCC in THDC case which was a judgment between the same parties. 21. Insofar as argument based on the principle of ejusdem generis is concerned, the Division Bench has held that that is not applicable in the present case. We find that it is rightly so held. Ejusdem generis is the rule of construction. The High Court has negated this argument in the following manner: 18. The rule of ejusdem generis guides us that where two or more words or phrases which are susceptible of analogous meaning are cupled together, a noscitur a sociis,they are to be understood to mean in their cognate sense and take colour from each other but only if there is a distinct genus or a category. Where this is lacking i.e. unless there is a category, the rule cannot apply. As rightly held, the rule of ejusdem generis would be applied only if there is distinct genus or a category, which is lacking in the instant case. This rule is applicable when particular words pertaining to a clause, category or genus are followed by general words. In such a situation, the general words are construed as limited to things of same kind as those specified. In that sense, this rule reflects an attempt to reconcile incompatibility between the specific and general words in view of the other rules of interpretation that all words in a statute are given effect if possible, that a statute is to be construed as a whole and that no words in a statute were presumed to be superfluous. (See Lokmat Newspapers Pvt. Ltd. v. Shankarprasad (1999) 6 SCC 275 ). In fact, construing the similar clause, this Court in the case of Bharat Heavy Electricals Limited v. Globe Hi- Fabs Limited (2015) 5 SCC 718 has held that rule of ejusdem generis is not applicable inasmuch as: 12. The rule of ejusdem generis has to be applied with care and caution. It is not an inviolable rule of law, but it is only permissible inference in the absence of an indication to the contrary, and where context and the object and mischief of the enactment do not require restricted meaning to be attached to words of general import, it becomes the duty of the courts to give those words their plain and ordinary meaning. As stated by Lord Scarman: If the legislative purpose of a statute is such that a statutory series should be read ejusdem generis, so be it, the rule is helpful. But, if it is not, the rule is more likely to defeat than to fulfil the purpose of the statute. The rule like many other rules of statutory interpretation, is a useful servant but a bad master. So a narrow construction on the basis of ejusdem generis rule may have to give way to a broader construction to give effect to the intention of Parliament by adopting a purposive construction. 15. A word of caution is here necessary. The fact that the ejusdem generis rule is not applicable does not necessarily mean that the prima facie wide meaning of the word other or similar general words cannot be restricted if the language or the context and the policy of the Act demand a restricted construction. In the expression defect of jurisdiction or other cause of a like nature as they occur in Section 14(1) of the Limitation Act the generality of the words other cause is cut down expressly by the words of a like nature, though the rule of ejusdem generis is strictly not applicable as mention of a single species defect of jurisdiction does not constitute a genus. Another example that may here be mentioned is Section 129 of the Motor Vehicles Act which empowers any police officer authorised in this behalf or other person authorised in this behalf by the State Government to detain and seize vehicles used without certification of registration or permit. The words other person in this section cannot be construed by the rule of ejusdem generis for mention of single species, namely, police officer does not constitute a genus but having regard to the importance of the power to detain and seize vehicles it is proper to infer that the words other person were restricted to the category of government officers. In the same category falls the case interpreting the words before filing a written statement or taking any other steps in the proceedings as they occur in Section 34 of the Arbitration Act, 1940. In the context in which the expression any other steps finds place it has been rightly construed to mean a step clearly and unambiguously manifesting an intention to waive the benefit of arbitration agreement, although the rule of ejusdem generis has no application for mention of a single species viz. written statement does not constitute a genus. 16. In the present case we noticed that the clause barring interest is very widely worded. It uses the words any amount due to the contractor by the employer. In our opinion, these words cannot be read as ejusdem generis along with the earlier words earnest money or security deposit. | 1[ds]16. In this whole conspectus and keeping in mind, in particular, that present case is regulated by 1996 Act, we have to decide the issue at hand. At this stage itself, it may be mentioned that in case clauses 50 and 51 of GCC put a bar on the arbitral tribunal to award interest, the arbitral tribunal did not have any jurisdiction to do so. As pointed out above, right from the stage of arbitration proceedings till the High Court, these clauses are interpreted to hold that they put such a bar on the arbitral tribunal. Even the majority award of the arbitral tribunal recognised this. Notwithstanding the same, it awarded the interest by relying upon Board of Trustees for the Port of Calcutta case. The High Court, both Single Bench as well as Division Bench, rightly noted that the aforesaid judgment was under the 1940 Act and the legal position in this behalf have taken a paradigm shift which position is clarified in Sayeed Ahmed and Company case. This rationale given by the High Court is in tune with the legal position which stands crystallised by catena of judgments as noted above17. Another reason given by the High Court is equally convincing. The Clauses 50 and 51 of GCC are pari materia with Clauses 1.2.14 and 1.2.15 of GCC in THDC case. Those clauses have been interpreted by holding that no interest is payable on claim for delayed payment due to the contractor. Same construction adopted in respect of these clauses, which, in fact, is a case between the same parties, is without any blemish18. In this backdrop, the only argument of the appellant that remains to be considered is as to whether such a construction is contrary to the judgment in Harish Chandra case20. It is also pertinent to note that the judgment in Sayeed Ahmed and Company distinguishing the restrictive wording in Harish Chandra has been consistently followed by this Court in number of cases thereafter. In this scenario, when we find that Harish Chandra case which is of the vintage of 1940 Act and is distinguished in Sayeed Ahmed and Company coupled with the fact that the ratio of Sayeed Ahmed and Company has been consistently followed, there is no reason to deviate from the construction to Clauses 50 and 51 of the GCC given by the arbitral tribunal in the first instance as well as the High Court. Above all, these clauses is pari materia with with Clauses 1.2.14 and 1.2.15 of GCC in THDC case which was a judgment between the same parties. | 1 | 7,085 | 467 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
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under Clause G1.09 in this case being absolute, the decision in Harish Chandra [(1999) 1 SCC 63] will not assist the appellant in any manner. 20. It is also pertinent to note that the judgment in Sayeed Ahmed and Company distinguishing the restrictive wording in Harish Chandra has been consistently followed by this Court in number of cases thereafter. In this scenario, when we find that Harish Chandra case which is of the vintage of 1940 Act and is distinguished in Sayeed Ahmed and Company coupled with the fact that the ratio of Sayeed Ahmed and Company has been consistently followed, there is no reason to deviate from the construction to Clauses 50 and 51 of the GCC given by the arbitral tribunal in the first instance as well as the High Court. Above all, these clauses is pari materia with with Clauses 1.2.14 and 1.2.15 of GCC in THDC case which was a judgment between the same parties. 21. Insofar as argument based on the principle of ejusdem generis is concerned, the Division Bench has held that that is not applicable in the present case. We find that it is rightly so held. Ejusdem generis is the rule of construction. The High Court has negated this argument in the following manner: 18. The rule of ejusdem generis guides us that where two or more words or phrases which are susceptible of analogous meaning are cupled together, a noscitur a sociis,they are to be understood to mean in their cognate sense and take colour from each other but only if there is a distinct genus or a category. Where this is lacking i.e. unless there is a category, the rule cannot apply. As rightly held, the rule of ejusdem generis would be applied only if there is distinct genus or a category, which is lacking in the instant case. This rule is applicable when particular words pertaining to a clause, category or genus are followed by general words. In such a situation, the general words are construed as limited to things of same kind as those specified. In that sense, this rule reflects an attempt to reconcile incompatibility between the specific and general words in view of the other rules of interpretation that all words in a statute are given effect if possible, that a statute is to be construed as a whole and that no words in a statute were presumed to be superfluous. (See Lokmat Newspapers Pvt. Ltd. v. Shankarprasad (1999) 6 SCC 275 ). In fact, construing the similar clause, this Court in the case of Bharat Heavy Electricals Limited v. Globe Hi- Fabs Limited (2015) 5 SCC 718 has held that rule of ejusdem generis is not applicable inasmuch as: 12. The rule of ejusdem generis has to be applied with care and caution. It is not an inviolable rule of law, but it is only permissible inference in the absence of an indication to the contrary, and where context and the object and mischief of the enactment do not require restricted meaning to be attached to words of general import, it becomes the duty of the courts to give those words their plain and ordinary meaning. As stated by Lord Scarman: If the legislative purpose of a statute is such that a statutory series should be read ejusdem generis, so be it, the rule is helpful. But, if it is not, the rule is more likely to defeat than to fulfil the purpose of the statute. The rule like many other rules of statutory interpretation, is a useful servant but a bad master. So a narrow construction on the basis of ejusdem generis rule may have to give way to a broader construction to give effect to the intention of Parliament by adopting a purposive construction. 15. A word of caution is here necessary. The fact that the ejusdem generis rule is not applicable does not necessarily mean that the prima facie wide meaning of the word other or similar general words cannot be restricted if the language or the context and the policy of the Act demand a restricted construction. In the expression defect of jurisdiction or other cause of a like nature as they occur in Section 14(1) of the Limitation Act the generality of the words other cause is cut down expressly by the words of a like nature, though the rule of ejusdem generis is strictly not applicable as mention of a single species defect of jurisdiction does not constitute a genus. Another example that may here be mentioned is Section 129 of the Motor Vehicles Act which empowers any police officer authorised in this behalf or other person authorised in this behalf by the State Government to detain and seize vehicles used without certification of registration or permit. The words other person in this section cannot be construed by the rule of ejusdem generis for mention of single species, namely, police officer does not constitute a genus but having regard to the importance of the power to detain and seize vehicles it is proper to infer that the words other person were restricted to the category of government officers. In the same category falls the case interpreting the words before filing a written statement or taking any other steps in the proceedings as they occur in Section 34 of the Arbitration Act, 1940. In the context in which the expression any other steps finds place it has been rightly construed to mean a step clearly and unambiguously manifesting an intention to waive the benefit of arbitration agreement, although the rule of ejusdem generis has no application for mention of a single species viz. written statement does not constitute a genus. 16. In the present case we noticed that the clause barring interest is very widely worded. It uses the words any amount due to the contractor by the employer. In our opinion, these words cannot be read as ejusdem generis along with the earlier words earnest money or security deposit.
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1
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16. In this whole conspectus and keeping in mind, in particular, that present case is regulated by 1996 Act, we have to decide the issue at hand. At this stage itself, it may be mentioned that in case clauses 50 and 51 of GCC put a bar on the arbitral tribunal to award interest, the arbitral tribunal did not have any jurisdiction to do so. As pointed out above, right from the stage of arbitration proceedings till the High Court, these clauses are interpreted to hold that they put such a bar on the arbitral tribunal. Even the majority award of the arbitral tribunal recognised this. Notwithstanding the same, it awarded the interest by relying upon Board of Trustees for the Port of Calcutta case. The High Court, both Single Bench as well as Division Bench, rightly noted that the aforesaid judgment was under the 1940 Act and the legal position in this behalf have taken a paradigm shift which position is clarified in Sayeed Ahmed and Company case. This rationale given by the High Court is in tune with the legal position which stands crystallised by catena of judgments as noted above17. Another reason given by the High Court is equally convincing. The Clauses 50 and 51 of GCC are pari materia with Clauses 1.2.14 and 1.2.15 of GCC in THDC case. Those clauses have been interpreted by holding that no interest is payable on claim for delayed payment due to the contractor. Same construction adopted in respect of these clauses, which, in fact, is a case between the same parties, is without any blemish18. In this backdrop, the only argument of the appellant that remains to be considered is as to whether such a construction is contrary to the judgment in Harish Chandra case20. It is also pertinent to note that the judgment in Sayeed Ahmed and Company distinguishing the restrictive wording in Harish Chandra has been consistently followed by this Court in number of cases thereafter. In this scenario, when we find that Harish Chandra case which is of the vintage of 1940 Act and is distinguished in Sayeed Ahmed and Company coupled with the fact that the ratio of Sayeed Ahmed and Company has been consistently followed, there is no reason to deviate from the construction to Clauses 50 and 51 of the GCC given by the arbitral tribunal in the first instance as well as the High Court. Above all, these clauses is pari materia with with Clauses 1.2.14 and 1.2.15 of GCC in THDC case which was a judgment between the same parties.
|
Khajamian Wakf Estates & Others Vs. State of Madras & Others | be correct, it cannot be said that no compensation was provided for the acquisition of the Inam as a whole. Hence Art. 31-A bars the plea that there was contravention of Art. 31 (2) in making the acquisition in question. One of the contentions taken on behalf of the appellants is that the impugned Acts to the extent they purport to acquire mining lands are outside the purview of Art. 31-A It is not known whether the lands in which mining operations are going on were let or held as estates". There is also no evidence to show that the owners of those lands are entitled to the mines Hence it is not possible to uphold the contention that lands concerned in some of the appeals have been acquired without paying compensation.9. In order to avoid the bar of Art. 31-A, a curious plea was put forward. It was urged that when the concerned bills were submitted to the President for his assent as required by the first proviso to Art. 31-A, the President was not made aware of the Implications of the bills. This contention is a wholly untenable one. There Is no material before us from which we could, conclude that the President or his advisers were unaware of the implications of those bills. We must proceed on the basis that the President had given his assent to those bills after duly considering the implication of the provisions contained therein.10. It was next urged that the provisions in the impugned Acts reducing the liability of the tenants in the matter of payment of the arrears of rent, whether decreed or not were beyond the legislative competence of the State legislature. This contention is again untenable. Those arrears are either arrears of rent or debts due from agriculturists. If they are treated as arrears of rent then the State legislature had legislative power to legislate in respect of the same under Entry 18 of List II of the VIIth Schedule. If they are considered as debts due from the agriculturists then the State legislature had competence to legislate in respect of the same under Entry 30 of the same list.11. In regard to the Inams belonging to the religious and charitable institutions, the impugned Acts do not provide for payment of compensation in a lump sum but on the other hand provision is made to pay them a portion of the compensation every year as Tasdik. This is only a mode of payment of the compensation. That mode was evidently adopted in the interest of the concerned institutions. We are unable to agree that the method adopted is violative of Art. 31 (2). At any rate that provision is protected by Art 31-A.12. It was next urged that by acquiring the properties belonging to religious denominations, the legislature violated Art. 26 (c) and (d) which provide that religious denominations shall have the right to own and acquire movable and immovable property and administer such property in accordance with law. These provisions do not take away the right of the State to acquire property belonging to religious denominations. Those denominations can own, acquire properties and administer them in accordance with law. That does not mean that the properly owned by them cannot be acquired. As a result of acquisition they cease to own that property. Thereafter their right to administer that property ceases because it is no longer their property. Article 26 does not interfere with the right of the State to acquire property.13. Mr. S. V. Gupte appearing for some of the appellants urged that the impugned Act contravenes the second proviso to Art. 31-A. From the material before us it is not possible to hold that any property under the personal cultivation of any of the appellants had been acquired. Further there is no material to show what ceiling is? Hence it is not possible for us to examine the correctness of that contention. If in any particular case, the second proviso to Art. 31-A has been breached, then to that extent, the acquisition will become invalid.14. It was urged by Mr. Sastri, appearing for some of the appellants that the impugned Acts do not acquire the lands concerned in some of the appeals. This contention was not gone into by the High Court. Dealing with that contention, the High Court in its judgment observed:"But the applicability of the impugned Acts to the Inams in question cannot be conveniently investigated in the present writ proceedings. The question will have to be determined with reference to the terms of the grant, the extent of the grant has to be ascertained by reference to the relevant materials. Section 5 of Madras Act XXXI of 1963 (XXX of 1963 ?) makes special provision for determination of the question whether any non-ryotwari area is or is not an existing Inam Estate or part village Inam Estate, or a minor Inam or whole Inam village in Pudukkottai. It is stated at the bar that in most of the cases now before us the parties have applied under the provisions of the said Act for determination of the character of the Inams respectively held by them. It is needless to point out that the Tribunal constituted under the Act will be entitled to decide that a particular property is neither an existing Inam estate nor a part village Inam estate nor a whole Inam village in Pudukkottai and completely out of the coverage of Acts XXV. and XXX of 1963. We also make it clear that the disposal of these writ petitions now does not preclude the Inamdars from agitating the question that a particular property is not an inam at all and does not fall under any of the aforesaid four categories or falls under one or other of the categories as may he urged for the inamdars."15. We agree with the High Court that the contention in question can be more appropriately gone into in the manner suggested by the High Court. | 0[ds]We have not thought it necessary to go into the question whether as a result of Madras Act 40 of 1956, certain Inams have ceased to be Inams, as in our opinion, whether they continued to be Inams or not they are still "estate" within the meaning of Art. 31-A because they fall either under sub-clauses (I) or (II) or (III) of Clause (a) of Art. 31-A (2) and that being so the provisions of the impugned Acts cannot be challenged on the ground that they infringe Arts. 14, 19 and 31.The contention that as the State purported to abolish Inams and not other intermediaries the law cannot be held to be valid if the intermediaries sought to be removed are not Inamdars is an untenable one. If the impugned legislation can be traced to a valid legislative power the fact that the legislature wrongly described some of the intermediaries sought to be removed does not make the law invalid. From the above observations, it should not be understood that we have come to the conclusion that the intermediaries concerned were not Inamdars. We have not gone into that question. From the provisions of the impugned Acts, it is quite clear that the intention of the legislature was to abolish all intermediaries including the owners of those "estates" that were subjected to full assessment by Act 40 ofcontention bears only on the provisions of the Madras Act 26 of 1963 Section 18 of that Act provides that compensation shall be determined for each Inam as a whole and not separately for each of the interests in the Inams. The validity of this section was not challenged before us. All that was urged was that for some of the properties included in the Inam, no compensation was provided. Even if we assume this contention to be correct, it cannot be said that no compensation was provided for the acquisition of the Inam as a whole. Hence Art. 31-A bars the plea that there was contravention of Art. 31 (2) in making the acquisition in question. One of the contentions taken on behalf of the appellants is that the impugned Acts to the extent they purport to acquire mining lands are outside the purview of Art. 31-A It is not known whether the lands in which mining operations are going on were let or held as estates". There is also no evidence to show that the owners of those lands are entitled to the mines Hence it is not possible to uphold the contention that lands concerned in some of the appeals have been acquired without payingcontention is again untenable. Those arrears are either arrears of rent or debts due from agriculturists. If they are treated as arrears of rent then the State legislature had legislative power to legislate in respect of the same under Entry 18 of List II of the VIIth Schedule. If they are considered as debts due from the agriculturists then the State legislature had competence to legislate in respect of the same under Entry 30 of the same list.11. In regard to the Inams belonging to the religious and charitable institutions, the impugned Acts do not provide for payment of compensation in a lump sum but on the other hand provision is made to pay them a portion of the compensation every year as Tasdik. This is only a mode of payment of the compensation. That mode was evidently adopted in the interest of the concerned institutions. We are unable to agree that the method adopted is violative of Art. 31 (2). At any rate that provision is protected by Artprovisions do not take away the right of the State to acquire property belonging to religious denominations. Those denominations can own, acquire properties and administer them in accordance with law. That does not mean that the properly owned by them cannot be acquired. As a result of acquisition they cease to own that property. Thereafter their right to administer that property ceases because it is no longer their property. Article 26 does not interfere with the right of the State to acquirethe material before us it is not possible to hold that any property under the personal cultivation of any of the appellants had been acquired. Further there is no material to show what ceiling is? Hence it is not possible for us to examine the correctness of that contention. If in any particular case, the second proviso to Art. 31-A has been breached, then to that extent, the acquisition will become invalid.We agree with the High Court that the contention in question can be more appropriately gone into in the manner suggested by the High Court. | 0 | 3,016 | 855 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
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be correct, it cannot be said that no compensation was provided for the acquisition of the Inam as a whole. Hence Art. 31-A bars the plea that there was contravention of Art. 31 (2) in making the acquisition in question. One of the contentions taken on behalf of the appellants is that the impugned Acts to the extent they purport to acquire mining lands are outside the purview of Art. 31-A It is not known whether the lands in which mining operations are going on were let or held as estates". There is also no evidence to show that the owners of those lands are entitled to the mines Hence it is not possible to uphold the contention that lands concerned in some of the appeals have been acquired without paying compensation.9. In order to avoid the bar of Art. 31-A, a curious plea was put forward. It was urged that when the concerned bills were submitted to the President for his assent as required by the first proviso to Art. 31-A, the President was not made aware of the Implications of the bills. This contention is a wholly untenable one. There Is no material before us from which we could, conclude that the President or his advisers were unaware of the implications of those bills. We must proceed on the basis that the President had given his assent to those bills after duly considering the implication of the provisions contained therein.10. It was next urged that the provisions in the impugned Acts reducing the liability of the tenants in the matter of payment of the arrears of rent, whether decreed or not were beyond the legislative competence of the State legislature. This contention is again untenable. Those arrears are either arrears of rent or debts due from agriculturists. If they are treated as arrears of rent then the State legislature had legislative power to legislate in respect of the same under Entry 18 of List II of the VIIth Schedule. If they are considered as debts due from the agriculturists then the State legislature had competence to legislate in respect of the same under Entry 30 of the same list.11. In regard to the Inams belonging to the religious and charitable institutions, the impugned Acts do not provide for payment of compensation in a lump sum but on the other hand provision is made to pay them a portion of the compensation every year as Tasdik. This is only a mode of payment of the compensation. That mode was evidently adopted in the interest of the concerned institutions. We are unable to agree that the method adopted is violative of Art. 31 (2). At any rate that provision is protected by Art 31-A.12. It was next urged that by acquiring the properties belonging to religious denominations, the legislature violated Art. 26 (c) and (d) which provide that religious denominations shall have the right to own and acquire movable and immovable property and administer such property in accordance with law. These provisions do not take away the right of the State to acquire property belonging to religious denominations. Those denominations can own, acquire properties and administer them in accordance with law. That does not mean that the properly owned by them cannot be acquired. As a result of acquisition they cease to own that property. Thereafter their right to administer that property ceases because it is no longer their property. Article 26 does not interfere with the right of the State to acquire property.13. Mr. S. V. Gupte appearing for some of the appellants urged that the impugned Act contravenes the second proviso to Art. 31-A. From the material before us it is not possible to hold that any property under the personal cultivation of any of the appellants had been acquired. Further there is no material to show what ceiling is? Hence it is not possible for us to examine the correctness of that contention. If in any particular case, the second proviso to Art. 31-A has been breached, then to that extent, the acquisition will become invalid.14. It was urged by Mr. Sastri, appearing for some of the appellants that the impugned Acts do not acquire the lands concerned in some of the appeals. This contention was not gone into by the High Court. Dealing with that contention, the High Court in its judgment observed:"But the applicability of the impugned Acts to the Inams in question cannot be conveniently investigated in the present writ proceedings. The question will have to be determined with reference to the terms of the grant, the extent of the grant has to be ascertained by reference to the relevant materials. Section 5 of Madras Act XXXI of 1963 (XXX of 1963 ?) makes special provision for determination of the question whether any non-ryotwari area is or is not an existing Inam Estate or part village Inam Estate, or a minor Inam or whole Inam village in Pudukkottai. It is stated at the bar that in most of the cases now before us the parties have applied under the provisions of the said Act for determination of the character of the Inams respectively held by them. It is needless to point out that the Tribunal constituted under the Act will be entitled to decide that a particular property is neither an existing Inam estate nor a part village Inam estate nor a whole Inam village in Pudukkottai and completely out of the coverage of Acts XXV. and XXX of 1963. We also make it clear that the disposal of these writ petitions now does not preclude the Inamdars from agitating the question that a particular property is not an inam at all and does not fall under any of the aforesaid four categories or falls under one or other of the categories as may he urged for the inamdars."15. We agree with the High Court that the contention in question can be more appropriately gone into in the manner suggested by the High Court.
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We have not thought it necessary to go into the question whether as a result of Madras Act 40 of 1956, certain Inams have ceased to be Inams, as in our opinion, whether they continued to be Inams or not they are still "estate" within the meaning of Art. 31-A because they fall either under sub-clauses (I) or (II) or (III) of Clause (a) of Art. 31-A (2) and that being so the provisions of the impugned Acts cannot be challenged on the ground that they infringe Arts. 14, 19 and 31.The contention that as the State purported to abolish Inams and not other intermediaries the law cannot be held to be valid if the intermediaries sought to be removed are not Inamdars is an untenable one. If the impugned legislation can be traced to a valid legislative power the fact that the legislature wrongly described some of the intermediaries sought to be removed does not make the law invalid. From the above observations, it should not be understood that we have come to the conclusion that the intermediaries concerned were not Inamdars. We have not gone into that question. From the provisions of the impugned Acts, it is quite clear that the intention of the legislature was to abolish all intermediaries including the owners of those "estates" that were subjected to full assessment by Act 40 ofcontention bears only on the provisions of the Madras Act 26 of 1963 Section 18 of that Act provides that compensation shall be determined for each Inam as a whole and not separately for each of the interests in the Inams. The validity of this section was not challenged before us. All that was urged was that for some of the properties included in the Inam, no compensation was provided. Even if we assume this contention to be correct, it cannot be said that no compensation was provided for the acquisition of the Inam as a whole. Hence Art. 31-A bars the plea that there was contravention of Art. 31 (2) in making the acquisition in question. One of the contentions taken on behalf of the appellants is that the impugned Acts to the extent they purport to acquire mining lands are outside the purview of Art. 31-A It is not known whether the lands in which mining operations are going on were let or held as estates". There is also no evidence to show that the owners of those lands are entitled to the mines Hence it is not possible to uphold the contention that lands concerned in some of the appeals have been acquired without payingcontention is again untenable. Those arrears are either arrears of rent or debts due from agriculturists. If they are treated as arrears of rent then the State legislature had legislative power to legislate in respect of the same under Entry 18 of List II of the VIIth Schedule. If they are considered as debts due from the agriculturists then the State legislature had competence to legislate in respect of the same under Entry 30 of the same list.11. In regard to the Inams belonging to the religious and charitable institutions, the impugned Acts do not provide for payment of compensation in a lump sum but on the other hand provision is made to pay them a portion of the compensation every year as Tasdik. This is only a mode of payment of the compensation. That mode was evidently adopted in the interest of the concerned institutions. We are unable to agree that the method adopted is violative of Art. 31 (2). At any rate that provision is protected by Artprovisions do not take away the right of the State to acquire property belonging to religious denominations. Those denominations can own, acquire properties and administer them in accordance with law. That does not mean that the properly owned by them cannot be acquired. As a result of acquisition they cease to own that property. Thereafter their right to administer that property ceases because it is no longer their property. Article 26 does not interfere with the right of the State to acquirethe material before us it is not possible to hold that any property under the personal cultivation of any of the appellants had been acquired. Further there is no material to show what ceiling is? Hence it is not possible for us to examine the correctness of that contention. If in any particular case, the second proviso to Art. 31-A has been breached, then to that extent, the acquisition will become invalid.We agree with the High Court that the contention in question can be more appropriately gone into in the manner suggested by the High Court.
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M/S. Satyam Infoway Ltd Vs. M/S. Siffynet Solutions Pvt. Ltd | respondent in no doubt as to its successful existence prior to the adoption of Siffy as part of its corporate name and registration of Siffynet and Siffy.com as its domain names. It would therefore appear that the justification followed the choice and that the respondents choice of the word Siffy was not original but inspired by the appellants business name and that the respondents explanation for its choice of the word Siffy as a corporate and domain name is an invented post-rationalisation. 31. What is also important is that the respondent admittedly adopted the mark after the appellant. The appellant is the prior user and has the right to debar the respondent from eating into the goodwill it may have built up in connection with the name. 32. Another facet of passing off is the likelihood of confusion with possible injury to the public and consequential loss to the appellant. The similarily in the name may lead an unwary user of the internet of average intelligence and imperfect recollection to assume a business connection between the two. Such user may, while trying to access the information or services provided by the appellant, put in that extra f and be disappointed with the result. Documents have been filed by the respondent directed at establishing that the appellant name Sify was similar to other domain names such as Scifinet, Scifi.com etc. The exercise has been undertaken by the respondent presumably to show that the word Sify is not an original word and that several marks which were phonetically similar to the appellants trade name are already registered. We are not prepared to deny the appellants claim merely on the aforesaid basis. For one, none of the alleged previous registrants are before us. For another, the word sci-fi is an abbreviation of science fiction and is phonetically dissimilar to the word Sify. (See Collins Dictionary of the English Language). 33. The respondent then says that confusion is unlikely because they operate in different fields. According to the respondent their business is limited to network marketing unlike the appellant which carries on the business of software development, software solution and connected activities. The respondents assertion is factually incorrect and legally untenable. A domain name, is accessible by all internet users and the need to maintain an exclusive symbol for such access is crucial as we have earlier noted. Therefore a deceptively similar domain name may not only lead to a confusion of the source but the receipt of unsought for services. Besides the appellants have brought on record printouts of the respondents website in which they have advertised themselves as providing inter alia software solution, integrating and management solutions and software development covering the same field as the appellant. To take a specific example, the respondents brochure explicitly offers Intranet and Extranet solutions which are also explicitly offered by the appellant. There is clearly an overlap of identical or similar services. It may be difficult for the appellant to prove actual loss Having regard to the nature of the service and the means of access but the possibility of loss in the form of diverted customers is more than reasonably probable. 34. The last question is - where does the balance of convenience lie? Given the nature of the business, it is necessary to maintain the exclusive identity which a domain name requires. In other words, either Sify or Siffy must go. Apart from being the prior user, the appellant has adduced sufficient evidence to show that the public associates the trade name SIFY with the appellant. The respondent on the other hand has produced little proof to establish the averments in support of its case that it had a membership of 50,000. We are unable to hold, while not commenting on the authenticity of the bills relied on by the respondents, as the High Court has done, that the bills by themselves show that the respondent has been carrying on conferences at different places and enrolling members who would be transacting with them in the business and like that they have enrolled about 50,000 members already. Similarly, several Bills raised in the name of the respondent in respect of different items do not by themselves establish that the members of the public have come to associate the word Siffy only with the respondent. Weighed in the balance of comparative hardship, it is difficult to hold that the respondent would suffer any such loss as the appellant would unless an injunction is granted. The respondent can carry on its business and inform its members of the change of name. We are conscious of the fact that the grant of an interlocutory order may disrupt the respondents business. But the cannot be seen as an argument which should deter us from granting relief to the appellant to which we are otherwise satisfied it is entitled.35. The High Courts finding that no prejudice would be caused to the appellant because it had another domain name was a consideration which might have been relevant if there was a case of bonafide concurrent use and where the right to use was co-equal. The doubtful explanation given by the respondent for the choice of the word Siffy coupled with the reputation of the appellant can rationally lead us to the conclusion that the respondent was seeking to cash in on the appellants reputation as a provider of service on the internet. In view of our findings albeit prima facie on the dishonest adoption of the appellants trade name by the respondent, the investments made by the appellant in connection with the trade name, and the public association of the trade name Sify with the appellant, the appellant is entitled to the relief it claims. A different conclusion may be arrived at if evidence to the contrary is adduced at the trial. But at this stage and on the material before the Court, we are of the view that the conclusion of the High Court to the contrary was unwarranted. | 1[ds]In allowing the appeal, the High Court was of the view that merely because the appellant had started the business first, no order could have been granted in its favour without considering where the balance of convenience lay. It was held that the finding that the appellant had earned a reputation and goodwill in respect of the domain name Sify was not based on a consideration of the necessary factors. On the other hand, the documents on record showed that the respondent was doing business other than that done by the appellant and since there was no similarity between the two businesses, there was no question of customers being misled or misguided or getting confused.From the narration of these facts, it is clear that both the Courts below had proceeded on the basis that the principles relating to passing off actions in connection with trademarks are applicable to domain names. However, the respondent has contended that a Domain Name could not be confused with property names such as Trade Marks. According to the respondent, a domain name is merely an address on the internet. It was also submitted that registration of a domain name with ICANN did not confer any intellectual property right; that it is a contract with a registration authority allowing communication to reach the owners computer via Internet links channelled through the registration authoritys server and that it is akin to registration of a company name which is a unique identifier of a company but of itself confers no intellectual propertythe commercial field, each domain name owner provides information/ services which are associated with such domain name. Thus a domain name may pertain to provision of services within the meaning of Section 2(z). A domain name is easy to remember and use, and is chosen as an instrument of commercial enterprise not only because it facilitates the ability of consumers to navigate the Internet to find websites they are looking for, but also at the same time, serves to identify and distinguish the business itself, or its goods or services, and to specify its corresponding online Interneta domain name as an address must, of necessity, be peculiar and unique and where a domain name is used in connection with a business, the value of maintaining an exclusive identity becomes critical. "As more and more commercial enterprises trade or advertise their presence on the web, domain names have become more and more valuable and the potential for dispute is high. Whereas a large number of trademarks containing the same name can comfortablybecause they are associated with different products, belong to business in different jurisdictions etc, the distinctive nature of the domain name providing global exclusivity is much sought after. The fact that many consumers searching for a particular site are likely, in the first place, to try and guess its domain name has further enhanced thisThe second element that must be established by a plaintiff in a passing off action is misrepresentation by the defendant to the public. The word misrepresentation does not mean that the plaintiff has to prove any malafide intention on the part of the defendant. Of Course, if thein intentional, it might lead to an inference that the reputation of the plaintiff is such that it is worth the defendants while to cash in on it.The third element of a passing off action is loss or the likelihood of it.16. The use of the same or similar domain name may lead to a diversion of users which could result from such users mistakenly accessing one domain name instead of another. This may occur inwith its rapid progress and instant (and theoretically limitless) accessibility to users and potential customers and particularly so in areas of specific overlap. Ordinary consumers/ users seeking to locate the functions available under one domain name may be confused if they accidentally arrived at a different but similar web site which offers no such services. Such users could well conclude that the first domain name owner hadits goods or services through its promotional activities and the first domain owner would thereby lose their custom. It is apparent therefore that a domain name may have all the characteristics of a trademark and could found an action for passing off.As far as India is concerned, there is no legislation which explicitly refers to dispute resolution in connection with domain names. But although the operation of the Trade Marks Act, 1999 itself is not extra territorial and may not allow for adequate protection of domain names, this does not mean that domain names are not to be legally protected to the extent possible under the laws relating to passing off.26. This brings us to the merits of the dispute between the parties. As we have already said, a passing off action is based on the goodwill that a trader has in his name unlike an action for infringement of a trademark where a traders right is based on property in the name as such. Therefore, unless goodwill can be established by the appellant by showing that the public associates the name Sify with the services provided by the appellant, it cannotappellant has brought on record the stringent conditions and deposit of a large fee for having a trade name included in the NASDAQ International market. The appellant has complied with the conditions for listing. The appellants have claimed that its shares are since 1999 actively traded in on a daily basis on the NASDAQ. It is also claimed that the appellant has widely used the word Sify as a trade name/domain name for its software business and services. The appellants website www.sify.com is claimed to be a comprehensive internet site with a gamut of subjects to choose from. It has brought out brochures and issued advertisements offering services in the internet under the name Sify. It has submitted its sale figures and expenses incurred on advertisement and market promotion of its business under the tradename Sify. It is also claimed that apart from the fact that the appellant is popularly known as Sify, it has also applied for registration of more than 40 trademarks with the prefix Sify under the Trade and Merchandise Marks Act.Apart from the close visual similarly between Sify and Siffy, there is phonetic similarity between the two names. The addition of net to Siffy does not detract from thisWhat is also important is that the respondent admittedly adopted the mark after the appellant. The appellant is the prior user and has the right to debar the respondent from eating into the goodwill it may have built up in connection with thea deceptively similar domain name may not only lead to a confusion of the source but the receipt of unsought for services. Besides the appellants have brought on record printouts of the respondents website in which they have advertised themselves as providing inter alia software solution, integrating and management solutions and software development covering the same field as the appellant. To take a specific example, the respondents brochure explicitly offers Intranet and Extranet solutions which are also explicitly offered by the appellant. There is clearly an overlap of identical or similar services. It may be difficult for the appellant to prove actual loss Having regard to the nature of the service and the means of access but the possibility of loss in the form of diverted customers is more than reasonablyfrom being the prior user, the appellant has adduced sufficient evidence to show that the public associates the trade name SIFY with the appellant. The respondent on the other hand has produced little proof to establish the averments in support of its case that it had a membership of 50,000. We are unable to hold, while not commenting on the authenticity of the bills relied on by the respondents, as the High Court has done, that the bills by themselves show that the respondent has been carrying on conferences at different places and enrolling members who would be transacting with them in the business and like that they have enrolled about 50,000 members already. Similarly, several Bills raised in the name of the respondent in respect of different items do not by themselves establish that the members of the public have come to associate the word Siffy only with the respondent. Weighed in the balance of comparative hardship, it is difficult to hold that the respondent would suffer any such loss as the appellant would unless an injunction is granted. The respondent can carry on its business and inform its members of the change of name. We are conscious of the fact that the grant of an interlocutory order may disrupt the respondents business. But the cannot be seen as an argument which should deter us from granting relief to the appellant to which we are otherwise satisfied it is entitled.35. The High Courts finding that no prejudice would be caused to the appellant because it had another domain name was a consideration which might have been relevant if there was a case of bonafide concurrent use and where the right to use wasThe doubtful explanation given by the respondent for the choice of the word Siffy coupled with the reputation of the appellant can rationally lead us to the conclusion that the respondent was seeking to cash in on the appellants reputation as a provider of service on the internet. In view of our findings albeit prima facie on the dishonest adoption of the appellants trade name by the respondent, the investments made by the appellant in connection with the trade name, and the public association of the trade name Sify with the appellant, the appellant is entitled to the relief it claims. A different conclusion may be arrived at if evidence to the contrary is adduced at the trial. But at this stage and on the material before the Court, we are of the view that the conclusion of the High Court to the contrary was unwarranted. | 1 | 5,798 | 1,760 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
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respondent in no doubt as to its successful existence prior to the adoption of Siffy as part of its corporate name and registration of Siffynet and Siffy.com as its domain names. It would therefore appear that the justification followed the choice and that the respondents choice of the word Siffy was not original but inspired by the appellants business name and that the respondents explanation for its choice of the word Siffy as a corporate and domain name is an invented post-rationalisation. 31. What is also important is that the respondent admittedly adopted the mark after the appellant. The appellant is the prior user and has the right to debar the respondent from eating into the goodwill it may have built up in connection with the name. 32. Another facet of passing off is the likelihood of confusion with possible injury to the public and consequential loss to the appellant. The similarily in the name may lead an unwary user of the internet of average intelligence and imperfect recollection to assume a business connection between the two. Such user may, while trying to access the information or services provided by the appellant, put in that extra f and be disappointed with the result. Documents have been filed by the respondent directed at establishing that the appellant name Sify was similar to other domain names such as Scifinet, Scifi.com etc. The exercise has been undertaken by the respondent presumably to show that the word Sify is not an original word and that several marks which were phonetically similar to the appellants trade name are already registered. We are not prepared to deny the appellants claim merely on the aforesaid basis. For one, none of the alleged previous registrants are before us. For another, the word sci-fi is an abbreviation of science fiction and is phonetically dissimilar to the word Sify. (See Collins Dictionary of the English Language). 33. The respondent then says that confusion is unlikely because they operate in different fields. According to the respondent their business is limited to network marketing unlike the appellant which carries on the business of software development, software solution and connected activities. The respondents assertion is factually incorrect and legally untenable. A domain name, is accessible by all internet users and the need to maintain an exclusive symbol for such access is crucial as we have earlier noted. Therefore a deceptively similar domain name may not only lead to a confusion of the source but the receipt of unsought for services. Besides the appellants have brought on record printouts of the respondents website in which they have advertised themselves as providing inter alia software solution, integrating and management solutions and software development covering the same field as the appellant. To take a specific example, the respondents brochure explicitly offers Intranet and Extranet solutions which are also explicitly offered by the appellant. There is clearly an overlap of identical or similar services. It may be difficult for the appellant to prove actual loss Having regard to the nature of the service and the means of access but the possibility of loss in the form of diverted customers is more than reasonably probable. 34. The last question is - where does the balance of convenience lie? Given the nature of the business, it is necessary to maintain the exclusive identity which a domain name requires. In other words, either Sify or Siffy must go. Apart from being the prior user, the appellant has adduced sufficient evidence to show that the public associates the trade name SIFY with the appellant. The respondent on the other hand has produced little proof to establish the averments in support of its case that it had a membership of 50,000. We are unable to hold, while not commenting on the authenticity of the bills relied on by the respondents, as the High Court has done, that the bills by themselves show that the respondent has been carrying on conferences at different places and enrolling members who would be transacting with them in the business and like that they have enrolled about 50,000 members already. Similarly, several Bills raised in the name of the respondent in respect of different items do not by themselves establish that the members of the public have come to associate the word Siffy only with the respondent. Weighed in the balance of comparative hardship, it is difficult to hold that the respondent would suffer any such loss as the appellant would unless an injunction is granted. The respondent can carry on its business and inform its members of the change of name. We are conscious of the fact that the grant of an interlocutory order may disrupt the respondents business. But the cannot be seen as an argument which should deter us from granting relief to the appellant to which we are otherwise satisfied it is entitled.35. The High Courts finding that no prejudice would be caused to the appellant because it had another domain name was a consideration which might have been relevant if there was a case of bonafide concurrent use and where the right to use was co-equal. The doubtful explanation given by the respondent for the choice of the word Siffy coupled with the reputation of the appellant can rationally lead us to the conclusion that the respondent was seeking to cash in on the appellants reputation as a provider of service on the internet. In view of our findings albeit prima facie on the dishonest adoption of the appellants trade name by the respondent, the investments made by the appellant in connection with the trade name, and the public association of the trade name Sify with the appellant, the appellant is entitled to the relief it claims. A different conclusion may be arrived at if evidence to the contrary is adduced at the trial. But at this stage and on the material before the Court, we are of the view that the conclusion of the High Court to the contrary was unwarranted.
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that the first domain name owner hadits goods or services through its promotional activities and the first domain owner would thereby lose their custom. It is apparent therefore that a domain name may have all the characteristics of a trademark and could found an action for passing off.As far as India is concerned, there is no legislation which explicitly refers to dispute resolution in connection with domain names. But although the operation of the Trade Marks Act, 1999 itself is not extra territorial and may not allow for adequate protection of domain names, this does not mean that domain names are not to be legally protected to the extent possible under the laws relating to passing off.26. This brings us to the merits of the dispute between the parties. As we have already said, a passing off action is based on the goodwill that a trader has in his name unlike an action for infringement of a trademark where a traders right is based on property in the name as such. Therefore, unless goodwill can be established by the appellant by showing that the public associates the name Sify with the services provided by the appellant, it cannotappellant has brought on record the stringent conditions and deposit of a large fee for having a trade name included in the NASDAQ International market. The appellant has complied with the conditions for listing. The appellants have claimed that its shares are since 1999 actively traded in on a daily basis on the NASDAQ. It is also claimed that the appellant has widely used the word Sify as a trade name/domain name for its software business and services. The appellants website www.sify.com is claimed to be a comprehensive internet site with a gamut of subjects to choose from. It has brought out brochures and issued advertisements offering services in the internet under the name Sify. It has submitted its sale figures and expenses incurred on advertisement and market promotion of its business under the tradename Sify. It is also claimed that apart from the fact that the appellant is popularly known as Sify, it has also applied for registration of more than 40 trademarks with the prefix Sify under the Trade and Merchandise Marks Act.Apart from the close visual similarly between Sify and Siffy, there is phonetic similarity between the two names. The addition of net to Siffy does not detract from thisWhat is also important is that the respondent admittedly adopted the mark after the appellant. The appellant is the prior user and has the right to debar the respondent from eating into the goodwill it may have built up in connection with thea deceptively similar domain name may not only lead to a confusion of the source but the receipt of unsought for services. Besides the appellants have brought on record printouts of the respondents website in which they have advertised themselves as providing inter alia software solution, integrating and management solutions and software development covering the same field as the appellant. To take a specific example, the respondents brochure explicitly offers Intranet and Extranet solutions which are also explicitly offered by the appellant. There is clearly an overlap of identical or similar services. It may be difficult for the appellant to prove actual loss Having regard to the nature of the service and the means of access but the possibility of loss in the form of diverted customers is more than reasonablyfrom being the prior user, the appellant has adduced sufficient evidence to show that the public associates the trade name SIFY with the appellant. The respondent on the other hand has produced little proof to establish the averments in support of its case that it had a membership of 50,000. We are unable to hold, while not commenting on the authenticity of the bills relied on by the respondents, as the High Court has done, that the bills by themselves show that the respondent has been carrying on conferences at different places and enrolling members who would be transacting with them in the business and like that they have enrolled about 50,000 members already. Similarly, several Bills raised in the name of the respondent in respect of different items do not by themselves establish that the members of the public have come to associate the word Siffy only with the respondent. Weighed in the balance of comparative hardship, it is difficult to hold that the respondent would suffer any such loss as the appellant would unless an injunction is granted. The respondent can carry on its business and inform its members of the change of name. We are conscious of the fact that the grant of an interlocutory order may disrupt the respondents business. But the cannot be seen as an argument which should deter us from granting relief to the appellant to which we are otherwise satisfied it is entitled.35. The High Courts finding that no prejudice would be caused to the appellant because it had another domain name was a consideration which might have been relevant if there was a case of bonafide concurrent use and where the right to use wasThe doubtful explanation given by the respondent for the choice of the word Siffy coupled with the reputation of the appellant can rationally lead us to the conclusion that the respondent was seeking to cash in on the appellants reputation as a provider of service on the internet. In view of our findings albeit prima facie on the dishonest adoption of the appellants trade name by the respondent, the investments made by the appellant in connection with the trade name, and the public association of the trade name Sify with the appellant, the appellant is entitled to the relief it claims. A different conclusion may be arrived at if evidence to the contrary is adduced at the trial. But at this stage and on the material before the Court, we are of the view that the conclusion of the High Court to the contrary was unwarranted.
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Bharat Glass Tube Limited Vs. Gopal Glass Works Limited | to be new and original, the application of it to a watch to be worn on the wrist was for a purpose so different from and for a use so similar to the purpose and use of the bracelet that the design in question might be said to be original. worn on the wrist was for a purpose so different from and for a use so similar to the purpose and use of the bracelet that the design in question might be said to be original." Therefore, this case also depended on the appreciation of the material placed before the Court. 14. The next evidence which was lead by the appellant was a website had been downloaded from the United Kingdom Patent Office effecting patent that may be applied to glass sheets. No evidence has been produced to show that M/s.Vegla Vereinigte Glaswerke Gmbh had manufactured this design in glass sheet or not. It is only a design downloaded from the website of the Patent office in U.K. and it is not known whether it was reproduced on glass-sheet in U.K. or not. In this connection, the Assistant Controller has only observed that he has made a visual comparison of the U.K. registered design No.2022468 with the impugned design No.190336 and he was satisfied that both the designs make same appeal to the eye and there was sufficient resemblance between the two designs. Therefore, the Assistant Controller held that the impugned design was prior published and it could not be said to be new or original. The Assistant Controller further observed that the proprietor of this design had not been able to make a difference between the U.K. design and the present design. This was not accepted by learned Single Judge of the Calcutta High Court and for the good reason. It was observed by learned Single Judge as under:"The illustrations in the form of drawings downloaded from the website of the United Kingdom Patent Office depict the patterns that may be applied to glass sheets. The patterns may be same but the illustrations do not give the same visual effect as the samples of the glass sheets produced by the appellant in Court. There are also no clean unmistakable instructions or directions for production of glass sheets of the pattern illustrated.The visual effect and/or appeal of a pattern embossed into glass sheets by use of embossing rollers could be different from the visual effect of the same pattern etched into glass sheets manually. The respondent no.1 has not considered these factors.The order impugned considered with the materials on record, including in particular the computer print outs clearly reveals that the respondent no.1 has only compared the pattern and/or configuration considered the visual appeal thereof, but not the visual appeal of the pattern and/or configuration on the article. In other words, the Respondent No.1 has not considered the visual appeal of the finished product.There are no materials on record to show that the design had previously been applied to glass sheets. On the other hand, an affidavit was sworn on behalf of the appellant by a Liaison Executive affirming that he had ascertained that the proprietor of the design registered in the United Kingdom had never manufactured glass sheets of the design registered."From this it appears that in fact the pattern of the design which is reproduced on the glass-sheet and the design and the pattern which was reproduced on the glass-sheet of the United Kingdom was not common. The affidavit sworn on behalf of the respondent herein, the liaison Executive that he had ascertained from the proprietor of the design registered in United Kingdom and they have never manufactured glass-sheet of the design registered. This affidavit evidence of the Liaison Executive of the respondent company has remained un-rebutted. Secondly, the learned Assistant Controller has not properly compared the two designs that on what comparison he found that the same configuration or pattern are identical with that of the impugned design. Simply by saying visually one can liable to commit the mistake but if the comparison is to be judged whether the pattern of the United Kingdom and that of the present pattern is three dimension or not. Both the designs were placed before us as was done before the High Court also. Learned Single Judge recorded its finding after seeing both the designs that there is distinguishable difference between the two. Similar attempt was made before us to show that both the designs i.e. one that is published in United Kingdom and the impugned design are identical. We have seen the original glass pattern produced before us and the photograph of the pattern produced on record. If the complainant was serious about the same, it could have produced the pattern which was reproduced on the glass-sheet in the United Kingdom and the pattern which is reproduced on the glass-sheet by the rollers of the design produced before us. If these two glass-sheets were placed before learned Single Judge or before us we would have been able to record the finding. The finding recorded by the Assistant Controller is most inconclusive and it does not give us any assurance that it was a proper comparison of the two patters by the Assistant Controller. Learned Single Judge of the Calcutta High Court had occasion to go through both the patterns and found that there is no comparison. Likewise, the glass-sheets were placed before us with all dimensions along with a copy of the print out of the United Kingdom and we are of opinion that there is no comparison between the two. From the visual appeal placed before us, learned Single Judge has rightly concluded that there is no comparison of pattern or configuration of two designs. We fully agree with the view taken by learned Single Judge. Hence on this count also the view taken by the Assistant Controller does not appear to be correct and the view taken by learned Single Judge of the Calcutta High Court is correct. | 0[ds]Therefore, the concept of design is that a particular figure conceived by its designer in his mind and it is reproduced in some identifiable manner and it is sought to be applied to an article. Therefore, whenever registration is required then those configuration has to be chosen for registration to be reproduced in any article. The idea is that the design has to be registered which is sought to be reproduced on any article. Therefore, both the things are required to go together, i.e. the design and the design which is to be applied to an article. In the present case, the design has been reproduced in the article like glass which is registered. This could have been registered with rexin or leather. Therefore, for registration of a particular configuration or particular shape of thing which is sought to be reproduced on a particular article has to be applied. As in the present case the design sought to be reproduced on ahas been registered and there is no evidence to show that this design was registered earlier to be reproduced on glass in India or any other part of the country or in Germany or even for that matter in United Kingdom, therefore, it is for the first time registered in India which is new and original design which is to be reproduced on glass sheet. Therefore, the submission of learned senior counsel for the appellant, Mr.Gupta cannot be accepted that this design was not new and original.9. In this connection, our attention was invited to the decisions of the Delhi High Court in 1981 PTC 239 [M/s. Domestic Appliances and Others v. M/s. Globe Super Parts] and 1983 PTC 373[ The Wimco Ltd. Bombay v. M/s. Meena Match Industries, SivakasiOrs.]. In M/s. Domestic AppliancesOrs., M/s. Globe Super Parts, Faridabad manufactured gas tandoors and they got the design registered in respect of gas tandoor. The petitionersM/s. Domestic AppliancesOrs. also manufacture gas tandoors under the trade mark Sizzler. They were selling the same in Delhi market. The respondent filed a suit against the petitioners alleging inter alia infringement of the design and obtained temporary injunction restraining the petitioners from selling the seasonal goods. The petitioners filed an application under Section 51A of the Designs Act, 1911 for cancellation of the design No.145258 before the Controller of Designs, Calcutta. The cancellation was sought on the allegations that the design No.145258 wasin India on the date of registration in as much as the respondents themselves were manufacturing and selling the gas tandoors earlier to the date of application for registration of design No.145258 and sold the same to various parties in Delhi, Punjab, Haryana, JammuUttar Pradesh and also advertised the said supercook gas tandoor in several newspapers. It was also alleged that the respondents were not the originators or the owners of the design. Therefore, it should be cancelled. This was resisted by the respondents. Similarly in this case here also it was alleged that this application has been filed as a counterblast to the suit filed by the respondent and it was also pleaded that the petitioners were not interested in cancellation of the design. In the suit certain issues were framed and the High Court held that there was no definite evidence produced by the parties that the design had been previously registered in India. It was also held that the respondents were manufacturing the gas tandoors of the impugned design prior to 1977 and ultimately the Court held that the gas tandoors of the impugned design had been sold prior to the date of its publication. In other words the design had been published for the first time in India in 1977. Therefore, this case was decided purely on the question of fact and no ratio has been laid down. Similarly in 1983 PTC 373, this was a case by the Wimco Limited, a public limited company which carried on business of manufacturing and selling match boxes. It was claiming that they were one of the famous manufacturers of matches and they developed a design and gave it a name as HOTSPOT and made an application for registration under the provisions of the Designs Act,1911 and the same was registered. Thereafter a suit was instituted against M/s. Meena Match Industries, M/s. Thilgaraj Match Works and Ms. SanjayCo to restrain the defendants from manufacturing, producing, selling and/or marketing or offering for same match boxes bearing the impugned pattern/ design on the match boxes. After review of the evidence on record the Court held that the design given to M/s. Wimco was liable to be cancelled on the ground that it has been published in India prior to the date of registration and the design was not a new or original one. Therefore, this was also decided basically on the question of fact. Similarly in the present case, as we have discussed above, that this design which was registered in the name of M/s. Gopal Glass Works was not published in India or in Germany. Therefore, it was a new and original design.The next evidence which was lead by the appellant was a website had been downloaded from the United Kingdom Patent Office effecting patent that may be applied to glass sheets. No evidence has been produced to show that M/s.Vegla Vereinigte Glaswerke Gmbh had manufactured this design in glass sheet or not. It is only a design downloaded from the website of the Patent office in U.K. and it is not known whether it was reproduced onin U.K. or not. In this connection, the Assistant Controller has only observed that he has made a visual comparison of the U.K. registered design No.2022468 with the impugned design No.190336 and he was satisfied that both the designs make same appeal to the eye and there was sufficient resemblance between the two designs. Therefore, the Assistant Controller held that the impugned design was prior published and it could not be said to be new or original. The Assistant Controller further observed that the proprietor of this design had not been able to make a difference between the U.K. design and the present design. This was not accepted by learned Single Judge of the Calcutta High Court and for the good reason. It was observed by learned Single Judge as under:"The illustrations in the form of drawings downloaded from the website of the United Kingdom Patent Office depict the patterns that may be applied to glass sheets. The patterns may be same but the illustrations do not give the same visual effect as the samples of the glass sheets produced by the appellant in Court. There are also no clean unmistakable instructions or directions for production of glass sheets of the pattern illustrated.The visual effect and/or appeal of a pattern embossed into glass sheets by use of embossing rollers could be different from the visual effect of the same pattern etched into glass sheets manually. The respondent no.1 has not considered these factors.The order impugned considered with the materials on record, including in particular the computer print outs clearly reveals that the respondent no.1 has only compared the pattern and/or configuration considered the visual appeal thereof, but not the visual appeal of the pattern and/or configuration on the article. In other words, the Respondent No.1 has not considered the visual appeal of the finished product.There are no materials on record to show that the design had previously been applied to glass sheets. On the other hand, an affidavit was sworn on behalf of the appellant by a Liaison Executive affirming that he had ascertained that the proprietor of the design registered in the United Kingdom had never manufactured glass sheets of the design registered."From this it appears that in fact the pattern of the design which is reproduced on theand the design and the pattern which was reproduced on theof the United Kingdom was not common. The affidavit sworn on behalf of the respondent herein, the liaison Executive that he had ascertained from the proprietor of the design registered in United Kingdom and they have never manufacturedof the design registered. This affidavit evidence of the Liaison Executive of the respondent company has remainedSecondly, the learned Assistant Controller has not properly compared the two designs that on what comparison he found that the same configuration or pattern are identical with that of the impugned design. Simply by saying visually one can liable to commit the mistake but if the comparison is to be judged whether the pattern of the United Kingdom and that of the present pattern is three dimension or not. Both the designs were placed before us as was done before the High Court also. Learned Single Judge recorded its finding after seeing both the designs that there is distinguishable difference between the two. Similar attempt was made before us to show that both the designs i.e. one that is published in United Kingdom and the impugned design are identical. We have seen the original glass pattern produced before us and the photograph of the pattern produced on record. If the complainant was serious about the same, it could have produced the pattern which was reproduced on thein the United Kingdom and the pattern which is reproduced on theby the rollers of the design produced before us. If these twowere placed before learned Single Judge or before us we would have been able to record the finding. The finding recorded by the Assistant Controller is most inconclusive and it does not give us any assurance that it was a proper comparison of the two patters by the Assistant Controller. Learned Single Judge of the Calcutta High Court had occasion to go through both the patterns and found that there is no comparison. Likewise, thewere placed before us with all dimensions along with a copy of the print out of the United Kingdom and we are of opinion that there is no comparison between the two. From the visual appeal placed before us, learned Single Judge has rightly concluded that there is no comparison of pattern or configuration of two designs. We fully agree with the view taken by learned Single Judge. Hence on this count also the view taken by the Assistant Controller does not appear to be correct and the view taken by learned Single Judge of the Calcutta High Court is correct. | 0 | 10,783 | 1,847 | ### Instruction:
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to be new and original, the application of it to a watch to be worn on the wrist was for a purpose so different from and for a use so similar to the purpose and use of the bracelet that the design in question might be said to be original. worn on the wrist was for a purpose so different from and for a use so similar to the purpose and use of the bracelet that the design in question might be said to be original." Therefore, this case also depended on the appreciation of the material placed before the Court. 14. The next evidence which was lead by the appellant was a website had been downloaded from the United Kingdom Patent Office effecting patent that may be applied to glass sheets. No evidence has been produced to show that M/s.Vegla Vereinigte Glaswerke Gmbh had manufactured this design in glass sheet or not. It is only a design downloaded from the website of the Patent office in U.K. and it is not known whether it was reproduced on glass-sheet in U.K. or not. In this connection, the Assistant Controller has only observed that he has made a visual comparison of the U.K. registered design No.2022468 with the impugned design No.190336 and he was satisfied that both the designs make same appeal to the eye and there was sufficient resemblance between the two designs. Therefore, the Assistant Controller held that the impugned design was prior published and it could not be said to be new or original. The Assistant Controller further observed that the proprietor of this design had not been able to make a difference between the U.K. design and the present design. This was not accepted by learned Single Judge of the Calcutta High Court and for the good reason. It was observed by learned Single Judge as under:"The illustrations in the form of drawings downloaded from the website of the United Kingdom Patent Office depict the patterns that may be applied to glass sheets. The patterns may be same but the illustrations do not give the same visual effect as the samples of the glass sheets produced by the appellant in Court. There are also no clean unmistakable instructions or directions for production of glass sheets of the pattern illustrated.The visual effect and/or appeal of a pattern embossed into glass sheets by use of embossing rollers could be different from the visual effect of the same pattern etched into glass sheets manually. The respondent no.1 has not considered these factors.The order impugned considered with the materials on record, including in particular the computer print outs clearly reveals that the respondent no.1 has only compared the pattern and/or configuration considered the visual appeal thereof, but not the visual appeal of the pattern and/or configuration on the article. In other words, the Respondent No.1 has not considered the visual appeal of the finished product.There are no materials on record to show that the design had previously been applied to glass sheets. On the other hand, an affidavit was sworn on behalf of the appellant by a Liaison Executive affirming that he had ascertained that the proprietor of the design registered in the United Kingdom had never manufactured glass sheets of the design registered."From this it appears that in fact the pattern of the design which is reproduced on the glass-sheet and the design and the pattern which was reproduced on the glass-sheet of the United Kingdom was not common. The affidavit sworn on behalf of the respondent herein, the liaison Executive that he had ascertained from the proprietor of the design registered in United Kingdom and they have never manufactured glass-sheet of the design registered. This affidavit evidence of the Liaison Executive of the respondent company has remained un-rebutted. Secondly, the learned Assistant Controller has not properly compared the two designs that on what comparison he found that the same configuration or pattern are identical with that of the impugned design. Simply by saying visually one can liable to commit the mistake but if the comparison is to be judged whether the pattern of the United Kingdom and that of the present pattern is three dimension or not. Both the designs were placed before us as was done before the High Court also. Learned Single Judge recorded its finding after seeing both the designs that there is distinguishable difference between the two. Similar attempt was made before us to show that both the designs i.e. one that is published in United Kingdom and the impugned design are identical. We have seen the original glass pattern produced before us and the photograph of the pattern produced on record. If the complainant was serious about the same, it could have produced the pattern which was reproduced on the glass-sheet in the United Kingdom and the pattern which is reproduced on the glass-sheet by the rollers of the design produced before us. If these two glass-sheets were placed before learned Single Judge or before us we would have been able to record the finding. The finding recorded by the Assistant Controller is most inconclusive and it does not give us any assurance that it was a proper comparison of the two patters by the Assistant Controller. Learned Single Judge of the Calcutta High Court had occasion to go through both the patterns and found that there is no comparison. Likewise, the glass-sheets were placed before us with all dimensions along with a copy of the print out of the United Kingdom and we are of opinion that there is no comparison between the two. From the visual appeal placed before us, learned Single Judge has rightly concluded that there is no comparison of pattern or configuration of two designs. We fully agree with the view taken by learned Single Judge. Hence on this count also the view taken by the Assistant Controller does not appear to be correct and the view taken by learned Single Judge of the Calcutta High Court is correct.
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defendants from manufacturing, producing, selling and/or marketing or offering for same match boxes bearing the impugned pattern/ design on the match boxes. After review of the evidence on record the Court held that the design given to M/s. Wimco was liable to be cancelled on the ground that it has been published in India prior to the date of registration and the design was not a new or original one. Therefore, this was also decided basically on the question of fact. Similarly in the present case, as we have discussed above, that this design which was registered in the name of M/s. Gopal Glass Works was not published in India or in Germany. Therefore, it was a new and original design.The next evidence which was lead by the appellant was a website had been downloaded from the United Kingdom Patent Office effecting patent that may be applied to glass sheets. No evidence has been produced to show that M/s.Vegla Vereinigte Glaswerke Gmbh had manufactured this design in glass sheet or not. It is only a design downloaded from the website of the Patent office in U.K. and it is not known whether it was reproduced onin U.K. or not. In this connection, the Assistant Controller has only observed that he has made a visual comparison of the U.K. registered design No.2022468 with the impugned design No.190336 and he was satisfied that both the designs make same appeal to the eye and there was sufficient resemblance between the two designs. Therefore, the Assistant Controller held that the impugned design was prior published and it could not be said to be new or original. The Assistant Controller further observed that the proprietor of this design had not been able to make a difference between the U.K. design and the present design. This was not accepted by learned Single Judge of the Calcutta High Court and for the good reason. It was observed by learned Single Judge as under:"The illustrations in the form of drawings downloaded from the website of the United Kingdom Patent Office depict the patterns that may be applied to glass sheets. The patterns may be same but the illustrations do not give the same visual effect as the samples of the glass sheets produced by the appellant in Court. There are also no clean unmistakable instructions or directions for production of glass sheets of the pattern illustrated.The visual effect and/or appeal of a pattern embossed into glass sheets by use of embossing rollers could be different from the visual effect of the same pattern etched into glass sheets manually. The respondent no.1 has not considered these factors.The order impugned considered with the materials on record, including in particular the computer print outs clearly reveals that the respondent no.1 has only compared the pattern and/or configuration considered the visual appeal thereof, but not the visual appeal of the pattern and/or configuration on the article. In other words, the Respondent No.1 has not considered the visual appeal of the finished product.There are no materials on record to show that the design had previously been applied to glass sheets. On the other hand, an affidavit was sworn on behalf of the appellant by a Liaison Executive affirming that he had ascertained that the proprietor of the design registered in the United Kingdom had never manufactured glass sheets of the design registered."From this it appears that in fact the pattern of the design which is reproduced on theand the design and the pattern which was reproduced on theof the United Kingdom was not common. The affidavit sworn on behalf of the respondent herein, the liaison Executive that he had ascertained from the proprietor of the design registered in United Kingdom and they have never manufacturedof the design registered. This affidavit evidence of the Liaison Executive of the respondent company has remainedSecondly, the learned Assistant Controller has not properly compared the two designs that on what comparison he found that the same configuration or pattern are identical with that of the impugned design. Simply by saying visually one can liable to commit the mistake but if the comparison is to be judged whether the pattern of the United Kingdom and that of the present pattern is three dimension or not. Both the designs were placed before us as was done before the High Court also. Learned Single Judge recorded its finding after seeing both the designs that there is distinguishable difference between the two. Similar attempt was made before us to show that both the designs i.e. one that is published in United Kingdom and the impugned design are identical. We have seen the original glass pattern produced before us and the photograph of the pattern produced on record. If the complainant was serious about the same, it could have produced the pattern which was reproduced on thein the United Kingdom and the pattern which is reproduced on theby the rollers of the design produced before us. If these twowere placed before learned Single Judge or before us we would have been able to record the finding. The finding recorded by the Assistant Controller is most inconclusive and it does not give us any assurance that it was a proper comparison of the two patters by the Assistant Controller. Learned Single Judge of the Calcutta High Court had occasion to go through both the patterns and found that there is no comparison. Likewise, thewere placed before us with all dimensions along with a copy of the print out of the United Kingdom and we are of opinion that there is no comparison between the two. From the visual appeal placed before us, learned Single Judge has rightly concluded that there is no comparison of pattern or configuration of two designs. We fully agree with the view taken by learned Single Judge. Hence on this count also the view taken by the Assistant Controller does not appear to be correct and the view taken by learned Single Judge of the Calcutta High Court is correct.
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Special Land Acquisition Officer, Bombay, And Others Vs. Godrej And Boyce | in question are unsuitable for the purpose in question" and that "the purpose continues to exist" lose all meaning in the face of the finding recorded by the High Court itself at another place that "the lands of the petitioners today are fully occupied by unauthorised hutments which have come up on these lands, rendering the lands worthless". The basic question is really whether the government can be held responsible for this state of affairs and can be compelled to go ahead with the acquisition though its purpose could not be achieved. We have already pointed out that the State cannot be held responsible for the occupation of the land by trespassers. It is true that if the government decides to go ahead with the acquisition and to take possession of the land, it has powers to evict trespassers and to secure possession of the land but, for this reason alone, they cannot be compelled to go ahead with the acquisition. In the conditions presently prevailing in major metropolitan cities, such eviction, for the government, poses more serious difficulties than to a private person like the respondent-company and it is common experience that, far from removing such encroachments, government and municipalities are constrained to "regularise" them and provide them with civic necessities. Enactments like the Slums Act and the Urban Land Ceiling and Regulation Act have further complicated the situation. Where slum dwellers on a large scale occupy pieces of land, social and human problems of such magnitude arise that it is virtually impossible for municipalities, and no mean task even for the government, to get the lands vacated. If the government is reluctant to go ahead with the acquisition in view of these genuine difficulties, it can hardly be blamed. We see no justification to direct the government to acquire the land and embark on such a venture. We are also of the opinion that the fact that the government exercised the power of withdrawal after the writ petition was filed does not spell mala fides once the existence of circumstances, which, in our opinion, justified the governments decision to withdraw, is acknowledged. 7. The High Court, in this context, has referred to Section 24 the Act and pointed out that the respondent-company could not afford to take steps for the eviction of the slum dwellers as what it might incur in this behalf will not be taken into account in determining the compensation payable to it under the Act. This is not strictly correct for under Section 24, it was open to the respondent-company to have incurred such expenditure with the sanction of the Collector and claimed reimbursement but the respondent-company did not seek the sanction of the Collector in this regard. That apart, this clause of Section 24 is only a provision laying done the rule that the State will, generally speaking, pay for the land only in the condition in which it was on the date of the Section 4 notification and that subsequent changes on the land will not be taken into account in the determination of the compensation. It cannot follow from this provision that the State should be compelled to take over the land because the owner of the land will need to take care of it at his own cost until it vests in the government. Far from a decision to withdraw, in such cases as the present one, being considered to be mala fide, it could be perhaps said with greater truth that the government would have been acting mala fide if, despite the clear knowledge that the land could not any longer be used for the purpose for which it had been acquired, it decided to go ahead with the acquisition. We are emphatically of the view that the State Government has acted in best interests of the public revenues and its decision cannot be faulted. 8. Before we concluded we may point out that somewhat similar questions came up for the decision of this Court in an appeal preferred by the State of Maharashtra. From an order of the Bombay High Court reported as M/s. Majas Land Development Corpn. v. State of Maharashtra (AIR 1983 Bom 188 ). The special leave petition preferred by the State against the order of the High Court to a like effect was set aside by this Court, vide its order of August 1983, in Civil Appeal No. 6086 of 1983, by pointing out that it is open to the State Government to release the lands from acquisition and that the Land Acquisition Officer cannot be compelled to make the award. It was, however, pointed out that the government will be liable to pay compensation to the claimants under Section 48(2) of the Land Acquisition Act. In the affidavit filed by the appellants before the High Court in the present case they have already called upon the respondent-company to furnish details of claims, if any, regarding the compensation claimed under Section 48. It is open to the respondent-company to pursue this claim and the State Government will dispose of the same in accordance with law. 9. We are therefore of the opinion that the order passed by the State Government under Section 48 should be upheld and the release of the lands from acquisition sustained. 10. Learned counsel for the respondent-company contended that at the time the land was initially acquired under Section 4 there had been a proposal that the government should grant in favour of the company some land contiguous to S. No. 40, Hissas Nos. 2 and 3, in exchange for the land sought to be acquired and that the appellants should be directed to give or sell some land to the petitioner. We are unable to follow how any such proposal, even if made originally, could survive in view of the acquisition proceedings having been dropped. However, we express no opinion in this regard and leave it to the company, if so advised, to pursue the matter with the government. | 1[ds]5. We are of opinion that the High Court erred in striking down the order under Section 48 and compelling the State Government to acquire the lands of the respondent. Under the scheme of the Act, neither the notification under Section 4 nor the declaration under Section 6 nor the notice under Section 9 is sufficient to divest the original owner of, or other person interested in, the land of his rights therein. Section 16 makes it clear beyond doubt that the title to the land vests in the government only when possession is taken by the government. Till that point of time, the land continues to be with the original owner and he is also free (except where there is specific legislation to the contrary) to deal with the land just as he likes, although to may be that on account of the pendency of proceedings for acquisition intending purchasers may be chary of coming near the land. So long as possession is not taken over, the mere fact of a notification under Section 4 or declaration under Section 6 having been made does not divest the owner of his rights in respect of the land or relieve him of the duty to take care of the land and protect it against encroachments. Again, such a notification does not either confer on the State Government any right to interfere with the ownership or other rights in the land or impose on it any duty to remove encroachments therefrom or in any other way safeguard the interests of the original owner of the land. It is in view of this position, that the owners interests remain unaffected until possession is taken, that Section 48 gives a liberty to the State Government to withdraw from the acquisition at any stage before possession is taken. By such withdrawal no irreparable prejudice is caused to the owner of the land, and if at all he has suffered any damage in consequence of the acquisition proceedings or incurred costs in relation thereto, he will be compensated therefor under Section 48(2). In this view of the matter, it does not matter even if there is lapse of considerable time between the original notification and withdrawal under Section 48 as held in Trustees of Bai Smarth Jain Shvetambar Murtipujak Gyanoddhaya Trust v. State of Gujarat (AIR 1981 Guj 107 ). It also follows that the State can be permitted to exercise its power of withdrawal unilaterally and no requirement that the owner of the land should be given an opportunity of being heard before doing so should be read into theThe High Court has taken the view that a decision of withdrawal from acquisition must be backed by reasons and cannot be arbitrary or whimsical. We may observe that having regard to the scheme of the Act as discussed above, it is difficult to see why the State Government should at all be compelled to give any cogent reasons for a decision not to go ahead with its proposal to acquire a piece of land. It is well settled in the field of specific performance of contracts that no person will be compelled to acquire a piece of land as any breach of a contract to purchase it can always be compensated for by damages. That is also the principle of Section 48(2). But this consideration apart, and even assuming that a withdrawal order under Section 48 should be backed by reasons and should be bona fide, we are of the opinion that in the present case the order is not vitiated in any manner. The government had intended to acquire a vast piece of vacant land for construction of houses by the State Housing Board. But this land had been overrun by slum dwellers to such an extent that it was no longer possible for the government to effectuate the intended purpose of acquisition. The High Courts observations that "the respondents have not stated in their affidavit that the lands in question are unsuitable for the purpose in question" and that "the purpose continues to exist" lose all meaning in the face of the finding recorded by the High Court itself at another place that "the lands of the petitioners today are fully occupied by unauthorised hutments which have come up on these lands, rendering the lands worthless". The basic question is really whether the government can be held responsible for this state of affairs and can be compelled to go ahead with the acquisition though its purpose could not be achieved. We have already pointed out that the State cannot be held responsible for the occupation of the land by trespassers. It is true that if the government decides to go ahead with the acquisition and to take possession of the land, it has powers to evict trespassers and to secure possession of the land but, for this reason alone, they cannot be compelled to go ahead with the acquisition. In the conditions presently prevailing in major metropolitan cities, such eviction, for the government, poses more serious difficulties than to a private person like the respondent-company and it is common experience that, far from removing such encroachments, government and municipalities are constrained to "regularise" them and provide them with civic necessities. Enactments like the Slums Act and the Urban Land Ceiling and Regulation Act have further complicated the situation. Where slum dwellers on a large scale occupy pieces of land, social and human problems of such magnitude arise that it is virtually impossible for municipalities, and no mean task even for the government, to get the lands vacated. If the government is reluctant to go ahead with the acquisition in view of these genuine difficulties, it can hardly be blamed. We see no justification to direct the government to acquire the land and embark on such a venture. We are also of the opinion that the fact that the government exercised the power of withdrawal after the writ petition was filed does not spell mala fides once the existence of circumstances, which, in our opinion, justified the governments decision to withdraw, isWe are therefore of the opinion that the order passed by the State Government under Section 48 should be upheld and the release of the lands from acquisitionLearned counsel for the respondent-company contended that at the time the land was initially acquired under Section 4 there had been a proposal that the government should grant in favour of the company some land contiguous to S. No. 40, Hissas Nos. 2 and 3, in exchange for the land sought to be acquired and that the appellants should be directed to give or sell some land to the petitioner. We are unable to follow how any such proposal, even if made originally, could survive in view of the acquisition proceedings having been dropped.However, we express no opinion in this regard and leave it to the company, if so advised, to pursue the matter with the government | 1 | 2,569 | 1,253 | ### Instruction:
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in question are unsuitable for the purpose in question" and that "the purpose continues to exist" lose all meaning in the face of the finding recorded by the High Court itself at another place that "the lands of the petitioners today are fully occupied by unauthorised hutments which have come up on these lands, rendering the lands worthless". The basic question is really whether the government can be held responsible for this state of affairs and can be compelled to go ahead with the acquisition though its purpose could not be achieved. We have already pointed out that the State cannot be held responsible for the occupation of the land by trespassers. It is true that if the government decides to go ahead with the acquisition and to take possession of the land, it has powers to evict trespassers and to secure possession of the land but, for this reason alone, they cannot be compelled to go ahead with the acquisition. In the conditions presently prevailing in major metropolitan cities, such eviction, for the government, poses more serious difficulties than to a private person like the respondent-company and it is common experience that, far from removing such encroachments, government and municipalities are constrained to "regularise" them and provide them with civic necessities. Enactments like the Slums Act and the Urban Land Ceiling and Regulation Act have further complicated the situation. Where slum dwellers on a large scale occupy pieces of land, social and human problems of such magnitude arise that it is virtually impossible for municipalities, and no mean task even for the government, to get the lands vacated. If the government is reluctant to go ahead with the acquisition in view of these genuine difficulties, it can hardly be blamed. We see no justification to direct the government to acquire the land and embark on such a venture. We are also of the opinion that the fact that the government exercised the power of withdrawal after the writ petition was filed does not spell mala fides once the existence of circumstances, which, in our opinion, justified the governments decision to withdraw, is acknowledged. 7. The High Court, in this context, has referred to Section 24 the Act and pointed out that the respondent-company could not afford to take steps for the eviction of the slum dwellers as what it might incur in this behalf will not be taken into account in determining the compensation payable to it under the Act. This is not strictly correct for under Section 24, it was open to the respondent-company to have incurred such expenditure with the sanction of the Collector and claimed reimbursement but the respondent-company did not seek the sanction of the Collector in this regard. That apart, this clause of Section 24 is only a provision laying done the rule that the State will, generally speaking, pay for the land only in the condition in which it was on the date of the Section 4 notification and that subsequent changes on the land will not be taken into account in the determination of the compensation. It cannot follow from this provision that the State should be compelled to take over the land because the owner of the land will need to take care of it at his own cost until it vests in the government. Far from a decision to withdraw, in such cases as the present one, being considered to be mala fide, it could be perhaps said with greater truth that the government would have been acting mala fide if, despite the clear knowledge that the land could not any longer be used for the purpose for which it had been acquired, it decided to go ahead with the acquisition. We are emphatically of the view that the State Government has acted in best interests of the public revenues and its decision cannot be faulted. 8. Before we concluded we may point out that somewhat similar questions came up for the decision of this Court in an appeal preferred by the State of Maharashtra. From an order of the Bombay High Court reported as M/s. Majas Land Development Corpn. v. State of Maharashtra (AIR 1983 Bom 188 ). The special leave petition preferred by the State against the order of the High Court to a like effect was set aside by this Court, vide its order of August 1983, in Civil Appeal No. 6086 of 1983, by pointing out that it is open to the State Government to release the lands from acquisition and that the Land Acquisition Officer cannot be compelled to make the award. It was, however, pointed out that the government will be liable to pay compensation to the claimants under Section 48(2) of the Land Acquisition Act. In the affidavit filed by the appellants before the High Court in the present case they have already called upon the respondent-company to furnish details of claims, if any, regarding the compensation claimed under Section 48. It is open to the respondent-company to pursue this claim and the State Government will dispose of the same in accordance with law. 9. We are therefore of the opinion that the order passed by the State Government under Section 48 should be upheld and the release of the lands from acquisition sustained. 10. Learned counsel for the respondent-company contended that at the time the land was initially acquired under Section 4 there had been a proposal that the government should grant in favour of the company some land contiguous to S. No. 40, Hissas Nos. 2 and 3, in exchange for the land sought to be acquired and that the appellants should be directed to give or sell some land to the petitioner. We are unable to follow how any such proposal, even if made originally, could survive in view of the acquisition proceedings having been dropped. However, we express no opinion in this regard and leave it to the company, if so advised, to pursue the matter with the government.
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### Explanation:
as possession is not taken over, the mere fact of a notification under Section 4 or declaration under Section 6 having been made does not divest the owner of his rights in respect of the land or relieve him of the duty to take care of the land and protect it against encroachments. Again, such a notification does not either confer on the State Government any right to interfere with the ownership or other rights in the land or impose on it any duty to remove encroachments therefrom or in any other way safeguard the interests of the original owner of the land. It is in view of this position, that the owners interests remain unaffected until possession is taken, that Section 48 gives a liberty to the State Government to withdraw from the acquisition at any stage before possession is taken. By such withdrawal no irreparable prejudice is caused to the owner of the land, and if at all he has suffered any damage in consequence of the acquisition proceedings or incurred costs in relation thereto, he will be compensated therefor under Section 48(2). In this view of the matter, it does not matter even if there is lapse of considerable time between the original notification and withdrawal under Section 48 as held in Trustees of Bai Smarth Jain Shvetambar Murtipujak Gyanoddhaya Trust v. State of Gujarat (AIR 1981 Guj 107 ). It also follows that the State can be permitted to exercise its power of withdrawal unilaterally and no requirement that the owner of the land should be given an opportunity of being heard before doing so should be read into theThe High Court has taken the view that a decision of withdrawal from acquisition must be backed by reasons and cannot be arbitrary or whimsical. We may observe that having regard to the scheme of the Act as discussed above, it is difficult to see why the State Government should at all be compelled to give any cogent reasons for a decision not to go ahead with its proposal to acquire a piece of land. It is well settled in the field of specific performance of contracts that no person will be compelled to acquire a piece of land as any breach of a contract to purchase it can always be compensated for by damages. That is also the principle of Section 48(2). But this consideration apart, and even assuming that a withdrawal order under Section 48 should be backed by reasons and should be bona fide, we are of the opinion that in the present case the order is not vitiated in any manner. The government had intended to acquire a vast piece of vacant land for construction of houses by the State Housing Board. But this land had been overrun by slum dwellers to such an extent that it was no longer possible for the government to effectuate the intended purpose of acquisition. The High Courts observations that "the respondents have not stated in their affidavit that the lands in question are unsuitable for the purpose in question" and that "the purpose continues to exist" lose all meaning in the face of the finding recorded by the High Court itself at another place that "the lands of the petitioners today are fully occupied by unauthorised hutments which have come up on these lands, rendering the lands worthless". The basic question is really whether the government can be held responsible for this state of affairs and can be compelled to go ahead with the acquisition though its purpose could not be achieved. We have already pointed out that the State cannot be held responsible for the occupation of the land by trespassers. It is true that if the government decides to go ahead with the acquisition and to take possession of the land, it has powers to evict trespassers and to secure possession of the land but, for this reason alone, they cannot be compelled to go ahead with the acquisition. In the conditions presently prevailing in major metropolitan cities, such eviction, for the government, poses more serious difficulties than to a private person like the respondent-company and it is common experience that, far from removing such encroachments, government and municipalities are constrained to "regularise" them and provide them with civic necessities. Enactments like the Slums Act and the Urban Land Ceiling and Regulation Act have further complicated the situation. Where slum dwellers on a large scale occupy pieces of land, social and human problems of such magnitude arise that it is virtually impossible for municipalities, and no mean task even for the government, to get the lands vacated. If the government is reluctant to go ahead with the acquisition in view of these genuine difficulties, it can hardly be blamed. We see no justification to direct the government to acquire the land and embark on such a venture. We are also of the opinion that the fact that the government exercised the power of withdrawal after the writ petition was filed does not spell mala fides once the existence of circumstances, which, in our opinion, justified the governments decision to withdraw, isWe are therefore of the opinion that the order passed by the State Government under Section 48 should be upheld and the release of the lands from acquisitionLearned counsel for the respondent-company contended that at the time the land was initially acquired under Section 4 there had been a proposal that the government should grant in favour of the company some land contiguous to S. No. 40, Hissas Nos. 2 and 3, in exchange for the land sought to be acquired and that the appellants should be directed to give or sell some land to the petitioner. We are unable to follow how any such proposal, even if made originally, could survive in view of the acquisition proceedings having been dropped.However, we express no opinion in this regard and leave it to the company, if so advised, to pursue the matter with the government
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Workmen of Sudder Office, Cinnamara Vs. Management of Sudder Office and Another | inquiry that was conducted by it related to the circumstances under which the pulleys were removed from the engineering godown. It was not conducting any inquiry as it is normally understood when disciplinary proceedings are intended to be taken against a workman for misconduct. On the other hand from the very beginning in the order of termination nation it has stated that it has lost its confidence in the workman. In the letter to the union, the management has stated that it has lost confidence in the workman. Again in the written statement dated March 20, 1962, before the Labour Court, the management has categorically stated that the termination of services of the workman was because the management lost its confidence and trust in the workman. 28. It was the stand taken by the management that it has lost confidence in the workman and that action was taken under cl. 9 of the standing orders by terminating the services simpliciter. That was challenged by the union that the order has been so worded as to camouflage the real intention of the management, namely to dismiss the employee for misconduct. The Labour Court, no doubt, held that the action must have been taken under cl. 10(a)(2) of the standing orders for misconduct which resulted in the passing of the order under the cloak of cl. 9 of the standing orders, and that cl. 9 has been invoked only as a camouflage. If this finding of the Labour Court was supported by the union and the workman before the High Court, and accepted by the High Court, the position would have been entirely different. On the other hand, before the High Court, the counsel for the workman quite clearly conceded that he is not placing reliance on the finding of the Labour Court that cl. 9 has been invoked only as a camouflage. 29. Added to this there is the other crucial circumstance, namely, the Labour Court not having accepted the plea of the union that the management was prompted by mala fides, victimisation and unfair labour practice, when it passed the order of termination. Therefore, before the High Court all the other surrounding circumstances, namely, camouflage, victimisation, unfair labour practice and mala fides had to be eschewed from consideration. Then the question was a very simple one whether the order is one of dismissal for misconduct or one by way of termination of the services simpliciter on the basis of the contractual obligation contained in cl. 9 of the standing orders. The High Court having due regard to the various circumstances, referred to by us earlier, has come to the conclusion that the order is not one by way of dismissal but only an order of termination simpliciter on the ground that the management had lost confidence and trust in the workman. No doubt the standing order does not say that the services of a workman can be terminated when the employer loses its trust and confidence, but absence of such a provision, in our opinion, is inconsequential. There is no controversy that the workman Bhola Nath Thakur was the head clerk at the relevant time in the companys engineering godown and he was responsible for the maintenance of stores belonging to the company of the value of about six lakhs of rupees. This has been accepted by the union itself and if that is so, the workman was holding a very responsible post where integrity and honesty are quite essential. The management could have, no doubt, taken disciplinary action against the workman concerned according to law. But it has not done so in this case. On the other hand, when the circumstances showed that the company can no longer place its trust and confidence in the workman, the management terminated his services by making available to him all amounts that he will be entitled to in case of termination simpliciter under cl. 9 of the standing orders. The entire basis of the Labour Courts award for holding that the order is one of dismissal is its view that the management has invoked cl. 9 to camouflage its action. When that approach has been given up on behalf of the workman before the High Court, the reasoning of the Labour Court falls to the ground and the High Court has acted within its jurisdiction under Art. 226 when it set aside the order of the Labour Court especially when there has been no finding of victimisation, unfair labour practice or mala fides recorded against the management. To conclude, we are satisfied that the High Court was justified in setting aside the order of the Labour Court. 30. As we agree with the view of the High Court that the order is one terminating the services of the workman simpliciter, it is unnecessary for us to refer to the various decisions relating to the circumstances under which the Labour Court or an Industrial Tribunal can interfere with the findings recorded in a domestic inquiry. Nor is it necessary to consider the decisions referred to us relating to the circumstances under which a reinstatement need not be ordered even if it is held that the order of termination of service or dismissal cannot be justified. 31. Before we conclude we have to record a statement made before us by Mr. Chagla, learned counsel for the management, that his clients are also prepared to pay as ex gratia six months salary to the workman concerned. This will be over and above the amount that may have been paid or still remains to be paid on the basis that the order of termination is one of simpliciter as held by us. In the order dated April 19, 1960, it is stated that one months pay and allowances in lieu of notice are Rs. 361.95P. Six months wages now agreed to be paid by Mr. Chagla will be worked out on this basis. The amount will be paid to the workman within three months from today. | 0[ds]15. We do not find from the record that anyt was filed on the side of the workman before the High Court, Before the High Court, it is seen, the counsel appearing for the union and the workman represented that he was not placing any reliance on the statement contained in the award that the order of termination is a camouflage adopted by the management to cover up what really is an order of dismissal. It is further seen that it was conceded by the same counsel that the use of the expression "camouflage" by the union has no value in the circumstances of the case. But the counsel for the workman appears to have taken up the stand that he will be able to sustain the order of the Labour Court on the ground that the termination of the services is really one by way of dismissal21. From a perusal of cl. 9, it is seen that there is a power in the management to terminate under. (a) the employment of a workman forthwith by paying the amount of wages mentioned therein in lieu of notice. Notice of termination is mandatory only in cases of persons enumerated in. (b).e (d) provides that the employer is bound to pay the wages earned by the workman and any other dues within the period mentioned therein.s (a), (b) and (d) will have to be read together.e (c), on the other hand, deals with the powerof the management | 0 | 7,038 | 281 | ### 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:
inquiry that was conducted by it related to the circumstances under which the pulleys were removed from the engineering godown. It was not conducting any inquiry as it is normally understood when disciplinary proceedings are intended to be taken against a workman for misconduct. On the other hand from the very beginning in the order of termination nation it has stated that it has lost its confidence in the workman. In the letter to the union, the management has stated that it has lost confidence in the workman. Again in the written statement dated March 20, 1962, before the Labour Court, the management has categorically stated that the termination of services of the workman was because the management lost its confidence and trust in the workman. 28. It was the stand taken by the management that it has lost confidence in the workman and that action was taken under cl. 9 of the standing orders by terminating the services simpliciter. That was challenged by the union that the order has been so worded as to camouflage the real intention of the management, namely to dismiss the employee for misconduct. The Labour Court, no doubt, held that the action must have been taken under cl. 10(a)(2) of the standing orders for misconduct which resulted in the passing of the order under the cloak of cl. 9 of the standing orders, and that cl. 9 has been invoked only as a camouflage. If this finding of the Labour Court was supported by the union and the workman before the High Court, and accepted by the High Court, the position would have been entirely different. On the other hand, before the High Court, the counsel for the workman quite clearly conceded that he is not placing reliance on the finding of the Labour Court that cl. 9 has been invoked only as a camouflage. 29. Added to this there is the other crucial circumstance, namely, the Labour Court not having accepted the plea of the union that the management was prompted by mala fides, victimisation and unfair labour practice, when it passed the order of termination. Therefore, before the High Court all the other surrounding circumstances, namely, camouflage, victimisation, unfair labour practice and mala fides had to be eschewed from consideration. Then the question was a very simple one whether the order is one of dismissal for misconduct or one by way of termination of the services simpliciter on the basis of the contractual obligation contained in cl. 9 of the standing orders. The High Court having due regard to the various circumstances, referred to by us earlier, has come to the conclusion that the order is not one by way of dismissal but only an order of termination simpliciter on the ground that the management had lost confidence and trust in the workman. No doubt the standing order does not say that the services of a workman can be terminated when the employer loses its trust and confidence, but absence of such a provision, in our opinion, is inconsequential. There is no controversy that the workman Bhola Nath Thakur was the head clerk at the relevant time in the companys engineering godown and he was responsible for the maintenance of stores belonging to the company of the value of about six lakhs of rupees. This has been accepted by the union itself and if that is so, the workman was holding a very responsible post where integrity and honesty are quite essential. The management could have, no doubt, taken disciplinary action against the workman concerned according to law. But it has not done so in this case. On the other hand, when the circumstances showed that the company can no longer place its trust and confidence in the workman, the management terminated his services by making available to him all amounts that he will be entitled to in case of termination simpliciter under cl. 9 of the standing orders. The entire basis of the Labour Courts award for holding that the order is one of dismissal is its view that the management has invoked cl. 9 to camouflage its action. When that approach has been given up on behalf of the workman before the High Court, the reasoning of the Labour Court falls to the ground and the High Court has acted within its jurisdiction under Art. 226 when it set aside the order of the Labour Court especially when there has been no finding of victimisation, unfair labour practice or mala fides recorded against the management. To conclude, we are satisfied that the High Court was justified in setting aside the order of the Labour Court. 30. As we agree with the view of the High Court that the order is one terminating the services of the workman simpliciter, it is unnecessary for us to refer to the various decisions relating to the circumstances under which the Labour Court or an Industrial Tribunal can interfere with the findings recorded in a domestic inquiry. Nor is it necessary to consider the decisions referred to us relating to the circumstances under which a reinstatement need not be ordered even if it is held that the order of termination of service or dismissal cannot be justified. 31. Before we conclude we have to record a statement made before us by Mr. Chagla, learned counsel for the management, that his clients are also prepared to pay as ex gratia six months salary to the workman concerned. This will be over and above the amount that may have been paid or still remains to be paid on the basis that the order of termination is one of simpliciter as held by us. In the order dated April 19, 1960, it is stated that one months pay and allowances in lieu of notice are Rs. 361.95P. Six months wages now agreed to be paid by Mr. Chagla will be worked out on this basis. The amount will be paid to the workman within three months from today.
### Response:
0
### Explanation:
15. We do not find from the record that anyt was filed on the side of the workman before the High Court, Before the High Court, it is seen, the counsel appearing for the union and the workman represented that he was not placing any reliance on the statement contained in the award that the order of termination is a camouflage adopted by the management to cover up what really is an order of dismissal. It is further seen that it was conceded by the same counsel that the use of the expression "camouflage" by the union has no value in the circumstances of the case. But the counsel for the workman appears to have taken up the stand that he will be able to sustain the order of the Labour Court on the ground that the termination of the services is really one by way of dismissal21. From a perusal of cl. 9, it is seen that there is a power in the management to terminate under. (a) the employment of a workman forthwith by paying the amount of wages mentioned therein in lieu of notice. Notice of termination is mandatory only in cases of persons enumerated in. (b).e (d) provides that the employer is bound to pay the wages earned by the workman and any other dues within the period mentioned therein.s (a), (b) and (d) will have to be read together.e (c), on the other hand, deals with the powerof the management
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Commissioner of Income Tax, Delhi and Rajasthan Vs. Hira Lal Kapur Chand | HEGDE J.1. This appeal by special leave arises from the decision of the High Court of Delhi wherein the High Court refused to call for a statement of case under section 66(2) of the Indian Income-tax Act, 1922 The material facts of the case are as follows2. There was a sale of jewellery in 1937 to the Prince of Berar. The main question that fell for decision was whether the sale was by the firm known as M/s. Babu Mal & Co. or whether it was by an association of persons consisting of Kapur Chand and his brother Hira Lal. It appears that Kapur Chand and Hira Lal were partners of the firm M/s. Babu Mal & Co. The right to collect the price of the jewellery sold to the Prince of Berar appears to have been allotted to the share of Kapur Chand and Hira Lal by the arbitrator who divided the assets of M/s. Babu Mal & Co. amongst the various partners of that firm. The Income-tax Officer assessed Kapur Chand and Hira Lal as an association of persons in respect of the profits said to have arisen as a result of the sale of jewellery to the Prince of Berar. Kapur Chand and Hira Lal denied their liability to be taxed on the profit in question. According to them they cannot be held liable for the sale of the jewellery in question on the sole ground that the right to collect the price of those jewellery had been assigned to their share. The Income-tax Officer rejected the plea of Kapur Chand and Hira Lal and assessed them in respect of the profits said to have arisen as a result of the sale of those jewellery as an association of persons. That order was affirmed by the Appellate Assistant Commissioner. The Tribunal, however, set aside the order of assessment. It came to the conclusion that there was no evidence to show that the transaction in question was effected by Kapur Chand and Hira Lal but all the same the Tribunal directed the Income-tax Officer to proceed to find out as to who was responsible for the transaction and assess the profits arising therefrom in the hands of that person. Thereafter, the department wanted the Tribunal to refer certain questions claimed by it to be questions of law arising from its order to the High Court for its opinion. The Tribunal rejected that prayer, and held that no question of law arose from its order. Aggrieved by that decision, the department moved the High Court to direct the Tribunal to state a case and refer the questions mentioned by it in its application to the High Court for its opinion. The High Court agreed with the Tribunal that no question of law arose from the order of the Tribunal. We are in agreement with the High Court that no question of law arises from the order of the Tribunal. The findings of the Tribunal are essentially findings of fact | 0[ds]We are in agreement with the High Court that no question of law arises from the order of the Tribunal. The findings of the Tribunal are essentially findings of fact | 0 | 531 | 35 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
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HEGDE J.1. This appeal by special leave arises from the decision of the High Court of Delhi wherein the High Court refused to call for a statement of case under section 66(2) of the Indian Income-tax Act, 1922 The material facts of the case are as follows2. There was a sale of jewellery in 1937 to the Prince of Berar. The main question that fell for decision was whether the sale was by the firm known as M/s. Babu Mal & Co. or whether it was by an association of persons consisting of Kapur Chand and his brother Hira Lal. It appears that Kapur Chand and Hira Lal were partners of the firm M/s. Babu Mal & Co. The right to collect the price of the jewellery sold to the Prince of Berar appears to have been allotted to the share of Kapur Chand and Hira Lal by the arbitrator who divided the assets of M/s. Babu Mal & Co. amongst the various partners of that firm. The Income-tax Officer assessed Kapur Chand and Hira Lal as an association of persons in respect of the profits said to have arisen as a result of the sale of jewellery to the Prince of Berar. Kapur Chand and Hira Lal denied their liability to be taxed on the profit in question. According to them they cannot be held liable for the sale of the jewellery in question on the sole ground that the right to collect the price of those jewellery had been assigned to their share. The Income-tax Officer rejected the plea of Kapur Chand and Hira Lal and assessed them in respect of the profits said to have arisen as a result of the sale of those jewellery as an association of persons. That order was affirmed by the Appellate Assistant Commissioner. The Tribunal, however, set aside the order of assessment. It came to the conclusion that there was no evidence to show that the transaction in question was effected by Kapur Chand and Hira Lal but all the same the Tribunal directed the Income-tax Officer to proceed to find out as to who was responsible for the transaction and assess the profits arising therefrom in the hands of that person. Thereafter, the department wanted the Tribunal to refer certain questions claimed by it to be questions of law arising from its order to the High Court for its opinion. The Tribunal rejected that prayer, and held that no question of law arose from its order. Aggrieved by that decision, the department moved the High Court to direct the Tribunal to state a case and refer the questions mentioned by it in its application to the High Court for its opinion. The High Court agreed with the Tribunal that no question of law arose from the order of the Tribunal. We are in agreement with the High Court that no question of law arises from the order of the Tribunal. The findings of the Tribunal are essentially findings of fact
### Response:
0
### Explanation:
We are in agreement with the High Court that no question of law arises from the order of the Tribunal. The findings of the Tribunal are essentially findings of fact
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Maharashjtra Rajya Mathadi Transport and General Kamgar Union & Another Vs. The Bombay Iron and Steel Labour Board & Others | In the instant case, assuming there was dispute and the Minister for labour in the State of Maharashtra could intervene, any decision would be binding if the mandatory requirement of Section 5 of the Act had been complied with. This has not been done. On the contrary, the Minutes would indicate that the iron work in the yard can only be done by the workers registered with the Iron Board under the scheme of 1970. The Minutes noted that the Minister asked whether there was any objection on the part of Chairman of Respondent No. 1, to club the work at Boisar Railway Yard, keep it with Iron Board and get it done jointly from the workers of Railway Board and Iron Board. It is recorded that the Chairman gave no objection. The correctness of this minutes are disputed in the affidavit filed by Mr. Sudhir Gaikawad on behalf of Respondent No. 1. We need not test the correctness of the Minutes, as admittedly the work had to be done by the workers registered with Respondent No. 1 Board. The exercise of issuing directions as set out in the Minutes of 8.2.2006 would be beyond the powers conferred on Respondent No. 1. The finality to a decision taken by Respondent No. 1 would only apply if there was dispute about the applicability of any Scheme and the State of Maharashtra after consulting the committee constituted under Section 14 of the Act, had given its decision. In our opinion, the Minutes of 8.2.2006 purporting to record certain directions was clearly without authority of law and liable to be quashed and set aside. At the highest, the proceedings of the Minutes can only be understood as an intervention to resolve a dispute raised by one of the Parties and therefore the decision, being not one under the Act would not be binding. Apart from that the Minister ought to have recognised his limits on intervention in the matter and issuing directions. Once there be an Act and a scheme framed thereunder, Respondent No. 3 State is bound to give effect to the scheme and not allow extraneous considerations, unconnected with the scheme to interfere with the functioning of the Statutory Board and powers conferred on it. Respondent No. 1 can only intervene when there be power and not otherwise. In the instant case, the action of Respondent No. 3 was clearly contrary to the Act and the scheme. 9. We then come to the third issue in the matter of registration of workmen with respondent No.1 Board. The scheme itself provides for the manner in which the workmen have to be registered under Clause 11 a register must be maintained on monthly basis in respect of monthly workers and a pool register of workers other than those on the monthly register. Clause 13 then reads as : "13. Fixation of number of workers on the registers: The Board shall determine before the commencement of registration in any category, the numbers of workers required in that category in consultation with the employers." Clause 15 deals with the registration of the existing and new workers.Clause 15(1)(c) provides that the registration of workers in any new category shall be from among the workers who have been or were working in the said employment on any such date as the Board may specify in this behalf provided, the worker is medically fit and is not more than 60 years of age.On a reading of Clauses 15, 16 and 17, it is clear that new workers can be registered, but that must necessarily contemplate that there is sufficiency of work available. There is also provision in special circumstances to employ unregistered workers. In other words, it is the Board that must satisfy itself, that there is sufficiency of work for the existing workers in Pool before new workers are admitted in the Pool. Workers cannot be registered if there be insufficient work or it would result in denial of fair wages to the existing workers registered under the scheme for the full working hours for the day. If only a fair wage can be paid to existing registered workers, can more workers be registered. There can be no apportionment of poverty. The scheme has been framed with the avowed object of efficient performance of work and generally for making better provisions for the terms and conditions of employment of such workers and to make provisions for their general welfare. The object of the Act and scheme is to ensure that unregistered workers are not exploited and that they get regularity of employment and decent wages. This object would be defeated, if the respondent Boards are called upon to engage workmen and register them with the Board and include them in the Pool, if otherwise, there is no sufficiency of work. The decision of this court of 13.10.2006 has resulted in the existing registered registered workers of other tolis of Respondent No. 1 being amalgamated. Consequently from 8 workmen in the Toli No. 235, there are now 42 workmen constituting new toli No. 477 who are doing the work. In these circumstances, in our opinion, considering the workload and the affidavit filed by Sudhir Gaikawad, more specifically Paragraph No.8, which point out that in the past there are instances where sufficient work load was not available to the registered Mathadi Workers of Respondent No. 1 for long periods, it would not be appropriate to direct to induct more workers in the toli. The other aspect of the matter is that from 24 applications received by Respondent No. 2 Board, 20 were workmen who were registered in 2001. This clearly would indicate that there was sufficient work with Respondent No. 2, as otherwise, those workers could not have been registered with the Respondent No. 2. At any rate, the decision, whether to register more workers and or allot them to existing Tolis, will be a decision solely of the Iron and Steel Board and not of the Respondent Government. | 1[ds]It is therefore, clear from the 1976 scheme that it will not apply for work, which is covered by another scheme which in the instant case is the Scheme of 1970. Under the Scheme of 1976, the registered workers of Respondent No. 2 can carry on all work except the work in respect of which other schemes have been framed in terms of the proviso to clause 2(2) of the 1976 scheme. There can therefore, be no dispute, nor can the workman of toli No. 189 or for that matter Respondent No. 2 contend that the work of unloading of steel and iron at Boisar of M/s. Jindal can only be done by registered workers of Respondent No. 1. In fact the communication of 4.6.2005 would indicate that a similar dispute had been raised by workers of toli No. 189. A joint meeting was held between Respondent Nos. 1 and 2 Boards by the Jt. Labour Commissioner and after elaborate discussions, it was unanimously decided that no work of Jindal Steel company can be allotted to toli No. 189 registered with Railway Board. This was communicated by the Joint Labour Commissioner on 4.6.2005. It is therefore, clear, considering the two schemes that the work connected with the loading etc. of iron and steel falls within the jurisdiction of Respondent No. 1 and can only be done by the workers registered with Respondent No. 1. Relief to that extent sought for by the Petitioner in Writ Petition No. 6902 of 2006 cannot be granted as that work under the 1976 scheme could not have been done by the workers registered with Respondent No. 2 Board. The first question answeredour opinion, the Minutes of 8.2.2006 purporting to record certain directions was clearly without authority of law and liable to be quashed and set aside. At the highest, the proceedings of the Minutes can only be understood as an intervention to resolve a dispute raised by one of the Parties and therefore the decision, being not one under the Act would not be binding. Apart from that the Minister ought to have recognised his limits on intervention in the matter and issuing directions. Once there be an Act and a scheme framed thereunder, Respondent No. 3 State is bound to give effect to the scheme and not allow extraneous considerations, unconnected with the scheme to interfere with the functioning of the Statutory Board and powers conferred on it. Respondent No. 1 can only intervene when there be power and not otherwise. In the instant case, the action of Respondent No. 3 was clearly contrary to the Act and thethese circumstances, in our opinion, considering the workload and the affidavit filed by Sudhir Gaikawad, more specifically Paragraph No.8, which point out that in the past there are instances where sufficient work load was not available to the registered Mathadi Workers of Respondent No. 1 for long periods, it would not be appropriate to direct to induct more workers in the toli. The other aspect of the matter is that from 24 applications received by Respondent No. 2 Board, 20 were workmen who were registered in 2001. This clearly would indicate that there was sufficient work with Respondent No. 2, as otherwise, those workers could not have been registered with the Respondent No. 2. At any rate, the decision, whether to register more workers and or allot them to existing Tolis, will be a decision solely of the Iron and Steel Board and not of the Respondent Government. | 1 | 4,109 | 654 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
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In the instant case, assuming there was dispute and the Minister for labour in the State of Maharashtra could intervene, any decision would be binding if the mandatory requirement of Section 5 of the Act had been complied with. This has not been done. On the contrary, the Minutes would indicate that the iron work in the yard can only be done by the workers registered with the Iron Board under the scheme of 1970. The Minutes noted that the Minister asked whether there was any objection on the part of Chairman of Respondent No. 1, to club the work at Boisar Railway Yard, keep it with Iron Board and get it done jointly from the workers of Railway Board and Iron Board. It is recorded that the Chairman gave no objection. The correctness of this minutes are disputed in the affidavit filed by Mr. Sudhir Gaikawad on behalf of Respondent No. 1. We need not test the correctness of the Minutes, as admittedly the work had to be done by the workers registered with Respondent No. 1 Board. The exercise of issuing directions as set out in the Minutes of 8.2.2006 would be beyond the powers conferred on Respondent No. 1. The finality to a decision taken by Respondent No. 1 would only apply if there was dispute about the applicability of any Scheme and the State of Maharashtra after consulting the committee constituted under Section 14 of the Act, had given its decision. In our opinion, the Minutes of 8.2.2006 purporting to record certain directions was clearly without authority of law and liable to be quashed and set aside. At the highest, the proceedings of the Minutes can only be understood as an intervention to resolve a dispute raised by one of the Parties and therefore the decision, being not one under the Act would not be binding. Apart from that the Minister ought to have recognised his limits on intervention in the matter and issuing directions. Once there be an Act and a scheme framed thereunder, Respondent No. 3 State is bound to give effect to the scheme and not allow extraneous considerations, unconnected with the scheme to interfere with the functioning of the Statutory Board and powers conferred on it. Respondent No. 1 can only intervene when there be power and not otherwise. In the instant case, the action of Respondent No. 3 was clearly contrary to the Act and the scheme. 9. We then come to the third issue in the matter of registration of workmen with respondent No.1 Board. The scheme itself provides for the manner in which the workmen have to be registered under Clause 11 a register must be maintained on monthly basis in respect of monthly workers and a pool register of workers other than those on the monthly register. Clause 13 then reads as : "13. Fixation of number of workers on the registers: The Board shall determine before the commencement of registration in any category, the numbers of workers required in that category in consultation with the employers." Clause 15 deals with the registration of the existing and new workers.Clause 15(1)(c) provides that the registration of workers in any new category shall be from among the workers who have been or were working in the said employment on any such date as the Board may specify in this behalf provided, the worker is medically fit and is not more than 60 years of age.On a reading of Clauses 15, 16 and 17, it is clear that new workers can be registered, but that must necessarily contemplate that there is sufficiency of work available. There is also provision in special circumstances to employ unregistered workers. In other words, it is the Board that must satisfy itself, that there is sufficiency of work for the existing workers in Pool before new workers are admitted in the Pool. Workers cannot be registered if there be insufficient work or it would result in denial of fair wages to the existing workers registered under the scheme for the full working hours for the day. If only a fair wage can be paid to existing registered workers, can more workers be registered. There can be no apportionment of poverty. The scheme has been framed with the avowed object of efficient performance of work and generally for making better provisions for the terms and conditions of employment of such workers and to make provisions for their general welfare. The object of the Act and scheme is to ensure that unregistered workers are not exploited and that they get regularity of employment and decent wages. This object would be defeated, if the respondent Boards are called upon to engage workmen and register them with the Board and include them in the Pool, if otherwise, there is no sufficiency of work. The decision of this court of 13.10.2006 has resulted in the existing registered registered workers of other tolis of Respondent No. 1 being amalgamated. Consequently from 8 workmen in the Toli No. 235, there are now 42 workmen constituting new toli No. 477 who are doing the work. In these circumstances, in our opinion, considering the workload and the affidavit filed by Sudhir Gaikawad, more specifically Paragraph No.8, which point out that in the past there are instances where sufficient work load was not available to the registered Mathadi Workers of Respondent No. 1 for long periods, it would not be appropriate to direct to induct more workers in the toli. The other aspect of the matter is that from 24 applications received by Respondent No. 2 Board, 20 were workmen who were registered in 2001. This clearly would indicate that there was sufficient work with Respondent No. 2, as otherwise, those workers could not have been registered with the Respondent No. 2. At any rate, the decision, whether to register more workers and or allot them to existing Tolis, will be a decision solely of the Iron and Steel Board and not of the Respondent Government.
### Response:
1
### Explanation:
It is therefore, clear from the 1976 scheme that it will not apply for work, which is covered by another scheme which in the instant case is the Scheme of 1970. Under the Scheme of 1976, the registered workers of Respondent No. 2 can carry on all work except the work in respect of which other schemes have been framed in terms of the proviso to clause 2(2) of the 1976 scheme. There can therefore, be no dispute, nor can the workman of toli No. 189 or for that matter Respondent No. 2 contend that the work of unloading of steel and iron at Boisar of M/s. Jindal can only be done by registered workers of Respondent No. 1. In fact the communication of 4.6.2005 would indicate that a similar dispute had been raised by workers of toli No. 189. A joint meeting was held between Respondent Nos. 1 and 2 Boards by the Jt. Labour Commissioner and after elaborate discussions, it was unanimously decided that no work of Jindal Steel company can be allotted to toli No. 189 registered with Railway Board. This was communicated by the Joint Labour Commissioner on 4.6.2005. It is therefore, clear, considering the two schemes that the work connected with the loading etc. of iron and steel falls within the jurisdiction of Respondent No. 1 and can only be done by the workers registered with Respondent No. 1. Relief to that extent sought for by the Petitioner in Writ Petition No. 6902 of 2006 cannot be granted as that work under the 1976 scheme could not have been done by the workers registered with Respondent No. 2 Board. The first question answeredour opinion, the Minutes of 8.2.2006 purporting to record certain directions was clearly without authority of law and liable to be quashed and set aside. At the highest, the proceedings of the Minutes can only be understood as an intervention to resolve a dispute raised by one of the Parties and therefore the decision, being not one under the Act would not be binding. Apart from that the Minister ought to have recognised his limits on intervention in the matter and issuing directions. Once there be an Act and a scheme framed thereunder, Respondent No. 3 State is bound to give effect to the scheme and not allow extraneous considerations, unconnected with the scheme to interfere with the functioning of the Statutory Board and powers conferred on it. Respondent No. 1 can only intervene when there be power and not otherwise. In the instant case, the action of Respondent No. 3 was clearly contrary to the Act and thethese circumstances, in our opinion, considering the workload and the affidavit filed by Sudhir Gaikawad, more specifically Paragraph No.8, which point out that in the past there are instances where sufficient work load was not available to the registered Mathadi Workers of Respondent No. 1 for long periods, it would not be appropriate to direct to induct more workers in the toli. The other aspect of the matter is that from 24 applications received by Respondent No. 2 Board, 20 were workmen who were registered in 2001. This clearly would indicate that there was sufficient work with Respondent No. 2, as otherwise, those workers could not have been registered with the Respondent No. 2. At any rate, the decision, whether to register more workers and or allot them to existing Tolis, will be a decision solely of the Iron and Steel Board and not of the Respondent Government.
|
M/S Craft Interiors Pvt. Ltd Vs. Commr.Ofcentral Excise,Bangalore | and nails. Skeletal boxes are then made and fixed on the wall on marked position. Interior partitions and shelves are then made in the case of storage units, running counters, rear unit etc. Once these activities are completed the whole unit is laminated or veneered which would cover the screws and nails. In other words, after these storage units, kitchen counters or conference tables/reception tables are erected they cannot be removed as such and cannot be moved from one place to another. It cannot be dismantled and removed in complete or semi knocked condition from one place to another. It can only be cannibalized as a result of which it gets reduced to broken pieces of wood, laminates etc.6. The Central Excise authorities issued various show cause notices to the appellants alleging that the appellants had manufactured and assembled excisable goods i.e. furniture and furniture parts falling under Chapter 9404 in the premises of various customers. In response it was contended by the appellants that activities undertaken by them i.e. erection of storage units, kitchen counters, reception tables/conference tables etc. results in emergence of immovable property and could not be considered as excisable goods.7. The Commissioner vide his order dated 24.9.2003 held that items like storage units, running counters, large reception tables etc. are classifiable under Chapter 9403 as furniture and liable to excise duty. Aggrieved by the said order the appellants filed an appeal to the Customs, Excise and Service Tax Appellate Tribunal, Bangalore which agreed with the findings of the Commissioner that although these items emerge on a piece by piece fabrication, the commodity is known in the market by name of table, storage counters etc. and as such are classifiable as furniture under Sub- heading 9403 of the Central Excise Tariff as furniture. Aggrieved, the appellants have filed the present appeal. 8. The issue which arises for consideration in these appeals is whether storage cabinets, kitchen counters, running counters, large reception/conference tables etc. are excisable as furniture. 9. Learned counsels for the appellants Shri Laxmikumaran and Shri Madhav Rao submitted that these items are fixtures and not furniture, and hence were not subject to the levy of excise duty. 10. In this connection we may refer to Chapter Sub-heading 9403 of the Central Excise Tariff Act, 1985 which reads as under: “Other furniture and parts thereof” 11. Learned counsel for the appellants submits that the word furniture means objects which are moveable and are complete before being placed either on the floor or the ground. Learned counsel also submitted that the word furniture does not cover items which emerge either as part of an immoveable property or are erected stage by stage in its completion. These, he submitted, were fixtures and not furniture. He submitted that several of the items in question were erected piece by piece and fixed to the wall or ground and as such are not moveable property. In other words, the same cannot be removed without cannibalizing i.e. without reducing them into broken piece of wood, laminates etc. 12. In this connection we may refer to the definition of furniture in various dictionaries. The Concise Oxford English Dictionary (Tenth Edn. Revised) defines furniture as follows : “the movable articles that are used to make a room or building suitable for living or working in, such as tables, chairs, or desks”. 13. Similarly, Chambers English Dictionary defines furniture as follows : “movables, either for use or ornament, with which a house is equipped”. 14. New Websters Dictionary defines furniture as follows: “the movable articles, such as tables, chairs, desks, required for use or ornament in a house or office” 15. Thus, a perusal of the definitions given in various dictionaries shows that ordinarily furniture refers to movable items such as desks, tables, chairs, required for use or ornamentation in a house or office. Thus, ordinarily furniture is not something immovable or something which is fixed in a position which can be removed only by cannibalizing. We agree with learned counsel for the appellants that the latter are fixtures and not furniture.16. Several of the items in question in the present case e.g. kitchen overhead and below counters, storage units are, in our opinion, clearly not furniture and hence not excisable under Sub- heading 9403 as furniture.17. In view of the above discussion, we are of the opinion that these appeals have to be allowed. We hold that items which are ordinarily immovable or which ordinarily cannot be removed without cannibalizing e.g. storage units, running counters, over- head unit, rear and side unit, wall unit, pantry unit, kitchen unit and other items which are ordinarily immovable or cannot be removed without cannibalizing are not furniture. However, items like tables, desks, chairs etc. are furniture and hence excisable. 18. We may add that sometimes chairs, beds, tables, desks, etc. are affixed to the ground, but nevertheless they will still be called as furniture (one may recall the fixed bed in Sherlock Holmes story `The Speckled Band). This is because when we interpret a word we should not only see the dictionary meaning but even more the popular meaning which the word has acquired in common parlance. As stated by K.L. Sarkar in his book “Mimansa Rules of Interpretation” (see second edition published by Modern Law Publication, Allahabad), “the popular meaning overpowers the etymological meaning.” 19. To give an example, the word `pankaja literally means born in mud. The word `panka means `mud, and the word `ja means `which is born in. Hence the etymological meaning of the word `pankaja is that `which is born in mud. Many things can be born in mud e.g. insects, vegetation, water flowers, etc. However, by popular usage the word `pankaja has acquired a particular meaning in common parlance i.e. lotus. This meaning will, therefore, prevail over the etymological meanings.20. Similarly, the word `furniture has a meaning in common parlance which every layman understands. It commonly refers to chairs, desks, tables, beds, etc. Hence we should give it this popular meaning. | 1[ds]15. Thus, a perusal of the definitions given in various dictionaries shows that ordinarily furniture refers to movable items such as desks, tables, chairs, required for use or ornamentation in a house or office. Thus, ordinarily furniture is not something immovable or something which is fixed in a position which can be removed only by cannibalizing. We agree with learned counsel for the appellants that the latter are fixtures and not furniture.16. Several of the items in question in the present case e.g. kitchen overhead and below counters, storage units are, in our opinion, clearly not furniture and hence not excisable under Sub- heading 9403 as furniture.17. In view of the above discussion, we are of the opinion that these appeals have to be allowed. We hold that items which are ordinarily immovable or which ordinarily cannot be removed without cannibalizing e.g. storage units, running counters, over- head unit, rear and side unit, wall unit, pantry unit, kitchen unit and other items which are ordinarily immovable or cannot be removed without cannibalizing are not furniture. However, items like tables, desks, chairs etc. are furniture and hence excisable.We may add that sometimes chairs, beds, tables, desks, etc. are affixed to the ground, but nevertheless they will still be called as furniture (one may recall the fixed bed in Sherlock Holmes story `The Speckled Band). This is because when we interpret a word we should not only see the dictionary meaning but even more the popular meaning which the word has acquired in common parlance. As stated by K.L. Sarkar in his book(see second edition published by Modern Law Publication, Allahabad),popular meaning overpowers the etymological meaning.To give an example, the word `pankaja literally means born in mud. The word `panka means `mud, and the word `ja means `which is born in. Hence the etymological meaning of the word `pankaja is that `which is born in mud. Many things can be born in mud e.g. insects, vegetation, water flowers, etc. However, by popular usage the word `pankaja has acquired a particular meaning in common parlance i.e. lotus. This meaning will, therefore, prevail over the etymological meanings.20. Similarly, the word `furniture has a meaning in common parlance which every layman understands. It commonly refers to chairs, desks, tables, beds, etc. Hence we should give it this popular meaning. | 1 | 1,485 | 469 | ### Instruction:
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and nails. Skeletal boxes are then made and fixed on the wall on marked position. Interior partitions and shelves are then made in the case of storage units, running counters, rear unit etc. Once these activities are completed the whole unit is laminated or veneered which would cover the screws and nails. In other words, after these storage units, kitchen counters or conference tables/reception tables are erected they cannot be removed as such and cannot be moved from one place to another. It cannot be dismantled and removed in complete or semi knocked condition from one place to another. It can only be cannibalized as a result of which it gets reduced to broken pieces of wood, laminates etc.6. The Central Excise authorities issued various show cause notices to the appellants alleging that the appellants had manufactured and assembled excisable goods i.e. furniture and furniture parts falling under Chapter 9404 in the premises of various customers. In response it was contended by the appellants that activities undertaken by them i.e. erection of storage units, kitchen counters, reception tables/conference tables etc. results in emergence of immovable property and could not be considered as excisable goods.7. The Commissioner vide his order dated 24.9.2003 held that items like storage units, running counters, large reception tables etc. are classifiable under Chapter 9403 as furniture and liable to excise duty. Aggrieved by the said order the appellants filed an appeal to the Customs, Excise and Service Tax Appellate Tribunal, Bangalore which agreed with the findings of the Commissioner that although these items emerge on a piece by piece fabrication, the commodity is known in the market by name of table, storage counters etc. and as such are classifiable as furniture under Sub- heading 9403 of the Central Excise Tariff as furniture. Aggrieved, the appellants have filed the present appeal. 8. The issue which arises for consideration in these appeals is whether storage cabinets, kitchen counters, running counters, large reception/conference tables etc. are excisable as furniture. 9. Learned counsels for the appellants Shri Laxmikumaran and Shri Madhav Rao submitted that these items are fixtures and not furniture, and hence were not subject to the levy of excise duty. 10. In this connection we may refer to Chapter Sub-heading 9403 of the Central Excise Tariff Act, 1985 which reads as under: “Other furniture and parts thereof” 11. Learned counsel for the appellants submits that the word furniture means objects which are moveable and are complete before being placed either on the floor or the ground. Learned counsel also submitted that the word furniture does not cover items which emerge either as part of an immoveable property or are erected stage by stage in its completion. These, he submitted, were fixtures and not furniture. He submitted that several of the items in question were erected piece by piece and fixed to the wall or ground and as such are not moveable property. In other words, the same cannot be removed without cannibalizing i.e. without reducing them into broken piece of wood, laminates etc. 12. In this connection we may refer to the definition of furniture in various dictionaries. The Concise Oxford English Dictionary (Tenth Edn. Revised) defines furniture as follows : “the movable articles that are used to make a room or building suitable for living or working in, such as tables, chairs, or desks”. 13. Similarly, Chambers English Dictionary defines furniture as follows : “movables, either for use or ornament, with which a house is equipped”. 14. New Websters Dictionary defines furniture as follows: “the movable articles, such as tables, chairs, desks, required for use or ornament in a house or office” 15. Thus, a perusal of the definitions given in various dictionaries shows that ordinarily furniture refers to movable items such as desks, tables, chairs, required for use or ornamentation in a house or office. Thus, ordinarily furniture is not something immovable or something which is fixed in a position which can be removed only by cannibalizing. We agree with learned counsel for the appellants that the latter are fixtures and not furniture.16. Several of the items in question in the present case e.g. kitchen overhead and below counters, storage units are, in our opinion, clearly not furniture and hence not excisable under Sub- heading 9403 as furniture.17. In view of the above discussion, we are of the opinion that these appeals have to be allowed. We hold that items which are ordinarily immovable or which ordinarily cannot be removed without cannibalizing e.g. storage units, running counters, over- head unit, rear and side unit, wall unit, pantry unit, kitchen unit and other items which are ordinarily immovable or cannot be removed without cannibalizing are not furniture. However, items like tables, desks, chairs etc. are furniture and hence excisable. 18. We may add that sometimes chairs, beds, tables, desks, etc. are affixed to the ground, but nevertheless they will still be called as furniture (one may recall the fixed bed in Sherlock Holmes story `The Speckled Band). This is because when we interpret a word we should not only see the dictionary meaning but even more the popular meaning which the word has acquired in common parlance. As stated by K.L. Sarkar in his book “Mimansa Rules of Interpretation” (see second edition published by Modern Law Publication, Allahabad), “the popular meaning overpowers the etymological meaning.” 19. To give an example, the word `pankaja literally means born in mud. The word `panka means `mud, and the word `ja means `which is born in. Hence the etymological meaning of the word `pankaja is that `which is born in mud. Many things can be born in mud e.g. insects, vegetation, water flowers, etc. However, by popular usage the word `pankaja has acquired a particular meaning in common parlance i.e. lotus. This meaning will, therefore, prevail over the etymological meanings.20. Similarly, the word `furniture has a meaning in common parlance which every layman understands. It commonly refers to chairs, desks, tables, beds, etc. Hence we should give it this popular meaning.
### Response:
1
### Explanation:
15. Thus, a perusal of the definitions given in various dictionaries shows that ordinarily furniture refers to movable items such as desks, tables, chairs, required for use or ornamentation in a house or office. Thus, ordinarily furniture is not something immovable or something which is fixed in a position which can be removed only by cannibalizing. We agree with learned counsel for the appellants that the latter are fixtures and not furniture.16. Several of the items in question in the present case e.g. kitchen overhead and below counters, storage units are, in our opinion, clearly not furniture and hence not excisable under Sub- heading 9403 as furniture.17. In view of the above discussion, we are of the opinion that these appeals have to be allowed. We hold that items which are ordinarily immovable or which ordinarily cannot be removed without cannibalizing e.g. storage units, running counters, over- head unit, rear and side unit, wall unit, pantry unit, kitchen unit and other items which are ordinarily immovable or cannot be removed without cannibalizing are not furniture. However, items like tables, desks, chairs etc. are furniture and hence excisable.We may add that sometimes chairs, beds, tables, desks, etc. are affixed to the ground, but nevertheless they will still be called as furniture (one may recall the fixed bed in Sherlock Holmes story `The Speckled Band). This is because when we interpret a word we should not only see the dictionary meaning but even more the popular meaning which the word has acquired in common parlance. As stated by K.L. Sarkar in his book(see second edition published by Modern Law Publication, Allahabad),popular meaning overpowers the etymological meaning.To give an example, the word `pankaja literally means born in mud. The word `panka means `mud, and the word `ja means `which is born in. Hence the etymological meaning of the word `pankaja is that `which is born in mud. Many things can be born in mud e.g. insects, vegetation, water flowers, etc. However, by popular usage the word `pankaja has acquired a particular meaning in common parlance i.e. lotus. This meaning will, therefore, prevail over the etymological meanings.20. Similarly, the word `furniture has a meaning in common parlance which every layman understands. It commonly refers to chairs, desks, tables, beds, etc. Hence we should give it this popular meaning.
|
Keshavlal Jethalal Shah Vs. Mohanlal Bhagwandas & Anr | provision of the law could not be affected retrospectively under an Amending Act so as to deprive the order of its finality acquired under the original provision. In Dafedar Niranjan Singhs case, (1962) 1 SCR 214 = (AIR 1961 SC 1425 ) an order releasing the property in dispute was passed by the Custodian of Evacuee Property under Patiala Ordinance No. IX of 2004 Samvat. No appeal was filed against the order of the Custodian and it became final on that account. The order was however set aside by the Custodian in exercise of jurisdiction under S. 58 (3) of the Administration of Evacuee Property Act 31 of 1950. This Court held that since the order had become final in exercise of the jurisdiction subsequently conferred, in the absence of any positive indication giving Section 58 (3) retrospective operation, the finality of the previous order could not be taken away.6. Counsel for the respondent relied upon a judgment of this Court in Moti Ram v. Suraj Bhan, (1960) 2 SCR 896 = (AIR 1960 SC 655 ) in which following Indira Sohanlals case, 1955-2 SCR 1117 = (AIR 1956 SC 77 ) it was held that the High Court could, in exercise of jurisdiction under an Amending Act enacted after the litigation was commenced, set aside an order which according to the law in force at the date when the litigation was commenced, was not subject to the jurisdiction of the High Court. In Moti Rams case, (1960) 2 SCR 896 = (AIR 1960 SC 655 ) an application for eviction of the appellant from a shop was made in August 1958 under Section 13 of the East Punjab Urban Rent Restriction Act, 1949. An appeal was provided under Section 15 of the Act from the order of the Rent Controller, and sub-section (4) of Section 15 provided that the decision of the appellate authority, and subject only to such decision, the order of the Controller shall be final. By Amending Act 29 of 1956 which came into force on September 24, 1956, the High Court was empowered to call for and examine the records relating to any order passed under the Act for satisfying itself as to the legality or propriety of such order. The landlords application was dismissed by the Rent Controller and in appeal the appellate authority confirmed the order. Thereafter on the application of the landlord the High Court reversed the order. This Court rejected the contention that the High Court had no jurisdiction to entertain the revision application under Section 15 (3) as amended. The decision brought before the High Court in exercise of its revisional jurisdiction under Section 15 (5) of the amended Act was delivered on August 19, 1958, after amendment of the Act on September 24, 1956. On the date on which it was made, the order had acquired no finality, for it was subject to an order which may be passed in a revision application which may be filed before the High Court under the amended Act. Moti Rams case. (1960) 2 SCR 896 = (AIR 1960 (SC 655 ) has. therefore, no application to this case.7. Counsel for the respondent urged that the extension of the jurisdiction of the High Court by Section 29 (2) of Bombay Act 57 of 1947 as amended by Gujarat Act 18 of 1965 related not to any right in existence, but to a matter of procedure, and on that account the Act as amended applied at the hearing, and in deciding the revision application filed by the respondent the High Court was boned to apply the amended Act. But when the revision application was entertained under Section 115 of the Code of Civil Procedure, the High Court assumed to itself a limited jurisdiction conferred by that section, and in the absence of any express provision made in the Amending Act, the jurisdiction conferred by that section could not be extended. The question whether the High Court could in exercise of its jurisdiction set aside, modify or alter the decision of the appellate court was not a matter of procedure. The order of the appellate court subject to scrutiny by the High Court within the limited field permitted by Section 115 of the Civil Procedure Code, was final. In conferring upon the High Court a wider jurisdiction for the purpose of determining whether the decision of the appellate court was according to law. the Legislature did not attempt to legislate in the matter of procedure. The Legislature expressly sought to confer upon the High Court power to reopen questions which till then were to be deemed finally decided.8. Counsel for the respondent also submitted that Section 29 (2) as amended was intended to have retrospective operation, because the amending Act was in the nature of explanatory legislation.There is nothing in the language of Section 29 (2) as amended, which may, indicate that it was intended to be retrospective in operation. Section 29 (2) as amended in terms confers jurisdiction upon the High Court to call for the record of a case for the purpose of satisfying itself that the decision in appeal was according to law, which the High Court did not possess before the date of the Amending Act. The amending clause does not seek to explain any pre-existing legislation which was ambiguous or defective. The power of the High Court to entertain a petition for exercising revisional jurisdiction was before the amendment derived from S. 115, Civil Procedure Code, and the Legislature has by the Amending Act not attempted to explain the meaning of that provision.An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. Section 29(2), before it was enacted was precise in its implication as well as in its expression; the meaning of the words used was not in doubt, and there was no omission in its phraseology which was required to be supplied by the amendment. | 1[ds]We do not think it necessary to express any opinion on the first question, because, in our judgment, on the second point raised by counsel, the appeal mustwhen the revision application was entertained under Section 115 of the Code of Civil Procedure, the High Court assumed to itself a limited jurisdiction conferred by that section, and in the absence of any express provision made in the Amending Act, the jurisdiction conferred by that section could not be extended.The question whether the High Court could in exercise of its jurisdiction set aside, modify or alter the decision of the appellate court was not a matter of procedure.The order of the appellate court subject to scrutiny by the High Court within the limited field permitted by Section 115 of the Civil Procedure Code, was final. In conferring upon the High Court a wider jurisdiction for the purpose of determining whether the decision of the appellate court was according to law. the Legislature did not attempt to legislate in the matter of procedure. The Legislature expressly sought to confer upon the High Court power to reopen questions which till then were to be deemed finallyIndira Sohanlals case 1955-2 SCR 1117 = (AIR 1956 SC 77 ) the Court was dealing with a case in which by amendment of statute, the finality which would but for the amendment have attached was taken away before the order was made. This Court in Dafedar Niranjan Singh v. Custodian Evacuee Property (Punjab). (1962) 1 SCR 214 = (AIR 1961 SC 1425 ) distinguished Indira a Sohanlals case. 1955-2 SCR 1117 = (AIR 1956 SC 77 ) and held that an order which had become final under a provision of the law could not be affected retrospectively under an Amending Act so as to deprive the order of its finality acquired under the original provision. In Dafedar Niranjan Singhs case, (1962) 1 SCR 214 = (AIR 1961 SC 1425 ) an order releasing the property in dispute was passed by the Custodian of Evacuee Property under Patiala Ordinance No. IX of 2004 Samvat. No appeal was filed against the order of the Custodian and it became final on that account. The order was however set aside by the Custodian in exercise of jurisdiction under S. 58 (3) of the Administration of Evacuee Property Act 31 of 1950. This Court held that since the order had become final in exercise of the jurisdiction subsequently conferred, in the absence of any positive indication giving Section 58 (3) retrospective operation, the finality of the previous order could not be takenMoti Rams case, (1960) 2 SCR 896 = (AIR 1960 SC 655 ) an application for eviction of the appellant from a shop was made in August 1958 under Section 13 of the East Punjab Urban Rent Restriction Act, 1949. An appeal was provided under Section 15 of the Act from the order of the Rent Controller, and sub-section (4) of Section 15 provided that the decision of the appellate authority, and subject only to such decision, the order of the Controller shall be final. By Amending Act 29 of 1956 which came into force on September 24, 1956, the High Court was empowered to call for and examine the records relating to any order passed under the Act for satisfying itself as to the legality or propriety of such order. The landlords application was dismissed by the Rent Controller and in appeal the appellate authority confirmed the order. Thereafter on the application of the landlord the High Court reversed the order. This Court rejected the contention that the High Court had no jurisdiction to entertain the revision application under Section 15 (3) as amended. The decision brought before the High Court in exercise of its revisional jurisdiction under Section 15 (5) of the amended Act was delivered on August 19, 1958, after amendment of the Act on September 24, 1956. On the date on which it was made, the order had acquired no finality, for it was subject to an order which may be passed in a revision application which may be filed before the High Court under the amended Act. Moti Rams case. (1960) 2 SCR 896 = (AIR 1960 (SC 655 ) has. therefore, no application to thisis nothing in the language of Section 29 (2) as amended, which may, indicate that it was intended to be retrospective in operation. Section 29 (2) as amended in terms confers jurisdiction upon the High Court to call for the record of a case for the purpose of satisfying itself that the decision in appeal was according to law, which the High Court did not possess before the date of the Amending Act. The amending clause does not seek to explain any pre-existing legislation which was ambiguous or defective. The power of the High Court to entertain a petition for exercising revisional jurisdiction was before the amendment derived from S. 115, Civil Procedure Code, and the Legislature has by the Amending Act not attempted to explain the meaning of that provision.An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. Section 29(2), before it was enacted was precise in its implication as well as in its expression; the meaning of the words used was not in doubt, and there was no omission in its phraseology which was required to be supplied by the amendment. | 1 | 2,440 | 1,004 | ### Instruction:
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provision of the law could not be affected retrospectively under an Amending Act so as to deprive the order of its finality acquired under the original provision. In Dafedar Niranjan Singhs case, (1962) 1 SCR 214 = (AIR 1961 SC 1425 ) an order releasing the property in dispute was passed by the Custodian of Evacuee Property under Patiala Ordinance No. IX of 2004 Samvat. No appeal was filed against the order of the Custodian and it became final on that account. The order was however set aside by the Custodian in exercise of jurisdiction under S. 58 (3) of the Administration of Evacuee Property Act 31 of 1950. This Court held that since the order had become final in exercise of the jurisdiction subsequently conferred, in the absence of any positive indication giving Section 58 (3) retrospective operation, the finality of the previous order could not be taken away.6. Counsel for the respondent relied upon a judgment of this Court in Moti Ram v. Suraj Bhan, (1960) 2 SCR 896 = (AIR 1960 SC 655 ) in which following Indira Sohanlals case, 1955-2 SCR 1117 = (AIR 1956 SC 77 ) it was held that the High Court could, in exercise of jurisdiction under an Amending Act enacted after the litigation was commenced, set aside an order which according to the law in force at the date when the litigation was commenced, was not subject to the jurisdiction of the High Court. In Moti Rams case, (1960) 2 SCR 896 = (AIR 1960 SC 655 ) an application for eviction of the appellant from a shop was made in August 1958 under Section 13 of the East Punjab Urban Rent Restriction Act, 1949. An appeal was provided under Section 15 of the Act from the order of the Rent Controller, and sub-section (4) of Section 15 provided that the decision of the appellate authority, and subject only to such decision, the order of the Controller shall be final. By Amending Act 29 of 1956 which came into force on September 24, 1956, the High Court was empowered to call for and examine the records relating to any order passed under the Act for satisfying itself as to the legality or propriety of such order. The landlords application was dismissed by the Rent Controller and in appeal the appellate authority confirmed the order. Thereafter on the application of the landlord the High Court reversed the order. This Court rejected the contention that the High Court had no jurisdiction to entertain the revision application under Section 15 (3) as amended. The decision brought before the High Court in exercise of its revisional jurisdiction under Section 15 (5) of the amended Act was delivered on August 19, 1958, after amendment of the Act on September 24, 1956. On the date on which it was made, the order had acquired no finality, for it was subject to an order which may be passed in a revision application which may be filed before the High Court under the amended Act. Moti Rams case. (1960) 2 SCR 896 = (AIR 1960 (SC 655 ) has. therefore, no application to this case.7. Counsel for the respondent urged that the extension of the jurisdiction of the High Court by Section 29 (2) of Bombay Act 57 of 1947 as amended by Gujarat Act 18 of 1965 related not to any right in existence, but to a matter of procedure, and on that account the Act as amended applied at the hearing, and in deciding the revision application filed by the respondent the High Court was boned to apply the amended Act. But when the revision application was entertained under Section 115 of the Code of Civil Procedure, the High Court assumed to itself a limited jurisdiction conferred by that section, and in the absence of any express provision made in the Amending Act, the jurisdiction conferred by that section could not be extended. The question whether the High Court could in exercise of its jurisdiction set aside, modify or alter the decision of the appellate court was not a matter of procedure. The order of the appellate court subject to scrutiny by the High Court within the limited field permitted by Section 115 of the Civil Procedure Code, was final. In conferring upon the High Court a wider jurisdiction for the purpose of determining whether the decision of the appellate court was according to law. the Legislature did not attempt to legislate in the matter of procedure. The Legislature expressly sought to confer upon the High Court power to reopen questions which till then were to be deemed finally decided.8. Counsel for the respondent also submitted that Section 29 (2) as amended was intended to have retrospective operation, because the amending Act was in the nature of explanatory legislation.There is nothing in the language of Section 29 (2) as amended, which may, indicate that it was intended to be retrospective in operation. Section 29 (2) as amended in terms confers jurisdiction upon the High Court to call for the record of a case for the purpose of satisfying itself that the decision in appeal was according to law, which the High Court did not possess before the date of the Amending Act. The amending clause does not seek to explain any pre-existing legislation which was ambiguous or defective. The power of the High Court to entertain a petition for exercising revisional jurisdiction was before the amendment derived from S. 115, Civil Procedure Code, and the Legislature has by the Amending Act not attempted to explain the meaning of that provision.An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. Section 29(2), before it was enacted was precise in its implication as well as in its expression; the meaning of the words used was not in doubt, and there was no omission in its phraseology which was required to be supplied by the amendment.
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We do not think it necessary to express any opinion on the first question, because, in our judgment, on the second point raised by counsel, the appeal mustwhen the revision application was entertained under Section 115 of the Code of Civil Procedure, the High Court assumed to itself a limited jurisdiction conferred by that section, and in the absence of any express provision made in the Amending Act, the jurisdiction conferred by that section could not be extended.The question whether the High Court could in exercise of its jurisdiction set aside, modify or alter the decision of the appellate court was not a matter of procedure.The order of the appellate court subject to scrutiny by the High Court within the limited field permitted by Section 115 of the Civil Procedure Code, was final. In conferring upon the High Court a wider jurisdiction for the purpose of determining whether the decision of the appellate court was according to law. the Legislature did not attempt to legislate in the matter of procedure. The Legislature expressly sought to confer upon the High Court power to reopen questions which till then were to be deemed finallyIndira Sohanlals case 1955-2 SCR 1117 = (AIR 1956 SC 77 ) the Court was dealing with a case in which by amendment of statute, the finality which would but for the amendment have attached was taken away before the order was made. This Court in Dafedar Niranjan Singh v. Custodian Evacuee Property (Punjab). (1962) 1 SCR 214 = (AIR 1961 SC 1425 ) distinguished Indira a Sohanlals case. 1955-2 SCR 1117 = (AIR 1956 SC 77 ) and held that an order which had become final under a provision of the law could not be affected retrospectively under an Amending Act so as to deprive the order of its finality acquired under the original provision. In Dafedar Niranjan Singhs case, (1962) 1 SCR 214 = (AIR 1961 SC 1425 ) an order releasing the property in dispute was passed by the Custodian of Evacuee Property under Patiala Ordinance No. IX of 2004 Samvat. No appeal was filed against the order of the Custodian and it became final on that account. The order was however set aside by the Custodian in exercise of jurisdiction under S. 58 (3) of the Administration of Evacuee Property Act 31 of 1950. This Court held that since the order had become final in exercise of the jurisdiction subsequently conferred, in the absence of any positive indication giving Section 58 (3) retrospective operation, the finality of the previous order could not be takenMoti Rams case, (1960) 2 SCR 896 = (AIR 1960 SC 655 ) an application for eviction of the appellant from a shop was made in August 1958 under Section 13 of the East Punjab Urban Rent Restriction Act, 1949. An appeal was provided under Section 15 of the Act from the order of the Rent Controller, and sub-section (4) of Section 15 provided that the decision of the appellate authority, and subject only to such decision, the order of the Controller shall be final. By Amending Act 29 of 1956 which came into force on September 24, 1956, the High Court was empowered to call for and examine the records relating to any order passed under the Act for satisfying itself as to the legality or propriety of such order. The landlords application was dismissed by the Rent Controller and in appeal the appellate authority confirmed the order. Thereafter on the application of the landlord the High Court reversed the order. This Court rejected the contention that the High Court had no jurisdiction to entertain the revision application under Section 15 (3) as amended. The decision brought before the High Court in exercise of its revisional jurisdiction under Section 15 (5) of the amended Act was delivered on August 19, 1958, after amendment of the Act on September 24, 1956. On the date on which it was made, the order had acquired no finality, for it was subject to an order which may be passed in a revision application which may be filed before the High Court under the amended Act. Moti Rams case. (1960) 2 SCR 896 = (AIR 1960 (SC 655 ) has. therefore, no application to thisis nothing in the language of Section 29 (2) as amended, which may, indicate that it was intended to be retrospective in operation. Section 29 (2) as amended in terms confers jurisdiction upon the High Court to call for the record of a case for the purpose of satisfying itself that the decision in appeal was according to law, which the High Court did not possess before the date of the Amending Act. The amending clause does not seek to explain any pre-existing legislation which was ambiguous or defective. The power of the High Court to entertain a petition for exercising revisional jurisdiction was before the amendment derived from S. 115, Civil Procedure Code, and the Legislature has by the Amending Act not attempted to explain the meaning of that provision.An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. Section 29(2), before it was enacted was precise in its implication as well as in its expression; the meaning of the words used was not in doubt, and there was no omission in its phraseology which was required to be supplied by the amendment.
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Thakore Sobhag Singh Vs. Thakur Jai Singh & Ors | rule of interpretation or in any judgment, decision, decree or order of any court. and notwithstanding any omission or defect "of form, procedure or want of any competent sanction or approval, it is hereby declared that the Jaipur Matmi Rules. 1945, published in the Jaipur Gazette Extraordinary, dated the 8th December, 1945, under Revenue Branch Notification No. 15941/Rev, dated 24th Novembers 1945, shall have and shall be deemed always to have had, the force of law and shall be treated as being and as having been an "existing Jagir law" within the meaning of Clause (d) of Section 2 of the Rajasthan Land Reforms and Resumption of Jagirs Act. 1952 (Rajasthan Act 6 of 1952) for the purpose of that Act as well as of the Rajasthan Jagir Decisions and Proceedings (Validation) Act, 1955 (Rajasthan Act 18 of 1955), and any other law relating to Jagirs or Jagirdars." But the Act did not supersede the judgment of the High Court. The Board of Revenue was therefore incompetent to consider and decide the question whether the Government may in the absence of the previous sanction of the Government refuse to recognise the adoption of Jai Singh.The Act again merely declares that the Matmi Rules shall be deemed always to have the force of law and shall be treated as being "existing Jagir law" within the meaning of Clause (d) of Section 2 of the Rajasthan Land Reforms and Resumption of Jagirs Act 6 of 1932 and Rajasthan Act 18 of 1955. But the Act does not purport to give retrospective operation to the Jaipur Matmi Rules. It is futile then to contend that the Board of Revenue before determining the question as to the factum of adoption of Jai Singh was required to consider whether the adoption was invalid, because sanction of the Ruler of Jaipur was not previously obtained by Sabhal Singh before taking Jai Singh in adoption. 8.The High Court also held in the writ petition that on the death of the holder l of the Jagir without having any issue the Jagir will vest in his adopted son in act ordnance with the personal law. That finding is now res judicata and is binding upon the parties. Counsel for the appellant contended that the order passed by the High Court was an interlocutory order remanding the proceeding to the Board of Revenue, and on that account the decision of the High Court will not operate as res judicata either before the Board of Revenue or in this Court. We are unable to accept that contention. Against the order of the Board of Revenue rejecting the claim of Jai Singh to be recognized as the adopted son of Sabhal Singh, a writ petition was moved in the High Court and a prayer for quashing that order was made. The High Court dealt with the dispute on merits and held that the order of the Board of Revenue holding that because of the Matmi Rules the adoption of Jai Singh by Sabhal Singh without the previous sanctions of the Ruler could not be recognized for the purpose of determining the succession to the Jagir was erroneous. The High Court did in making the final order direct the Tribunal to decide the case in accordance with the law and in the light of the observations made in the judgment, but the direction was, in our judgment, a surplusage. The High Court issued a writ in the nature of certiorari quashing the order of the Tribunal. It was unnecessary thereafter to direct or advise the Board of Revenue to perform its statutory duty to decide the dispute according to law. The Board of Revenue had to decide the dispute in accordance with the law declared by the High Court. All questions which had been expressly decided by the High Court on contest between the parties and other questions which must be deemed by necessary implication to have been decided were res judicata and could not be reopened before the Board of Revenue. In this appeal it is therefore not open to the appellant to contend that the decision of the High Court on the questions decided in the writ petition was erroneous. 9.It is unfortunate that the application for certificate to appeal to this Court filed by Sobhag Singh was erroneously rejected by the High Court. But that does not affect the binding character of the judgment of the High Court between the parties. Unless the decision of the High Court on those questions was set aside by appropriate proceeding in this Court, the judgment must be held binding between the parties. It is, therefore, not open to the appellant to contended that the right of Jai Singh as the adopted son to the Jagir had to be decided otherwise than in accordance with the personal law of Sabhal Singh. It is undisputed that according to the personal law applicable to Sabhal Singh, Jai Singh could have been adopted by him. 10.It was somewhat faintly contented by counsel for the appellant that if the judgment of the High Court is regarded as binding between the parties, the equal protection clause of the Constitution would be violated, and on that account also the judgment must he held invalid. The argument needs no serious consideration. It is difficult to appreciate the contention that two persons similarly situate were or could be differently treated by the judgment of the Board of Revenue, because the decision of the High Court operates as res judicata between the parties in one case. By the application of the rule of res judicata the appellant was not singled out for special or prejudicial treatment. It may suffice to observe that all adoptions according to the personal law in the State of Jaipur made by Jagirdars before the promulgation of the Matmi Rules are valid, even if no sanction of the Ruler was obtained to the adoptions. That rule applies to all adoptions by Japir cars in the State of Jaipur | 0[ds]In the opinion of the High Court, the Jagir devolved according to the personal law applicable to the last holder, and the personal law included the custom or usage relating to the particular Jagir; that the custom or usage applicable to the Jagir in question was that the adopted son must be a direct male lineal descendant of the original grantee, and that Nahar Singh was the original grantee of the Jagir in question and Jai Singh as a descendant of Nahar Singh was entitled to take the Jagir if it was proved that the adoption had been made in accordance with the personal law, that the Matmi Rules had no statutory force because it was not proved that assent of the Ruler of Jaipur had been given thereto, and that even assuming that the Rules were "existing Jagir law" they did not govern adoptions made before they were brought into force. An application for certificate to appeal to this Court against the judgment of the High Court under Article 133 of the Constitution was rejected on the ground that the dispute had not been finally decided and a number of issues remained to be decided8.The High Court also held in the writ petition that on the death of the holder l of the Jagir without having any issue the Jagir will vest in his adopted son in act ordnance with the personal law. That finding is now res judicata and is binding upon the parties. Counsel for the appellant contended that the order passed by the High Court was an interlocutory order remanding the proceeding to the Board of Revenue, and on that account the decision of the High Court will not operate as res judicata either before the Board of Revenue or in this Court. We are unable to accept that contention. Against the order of the Board of Revenue rejecting the claim of Jai Singh to be recognized as the adopted son of Sabhal Singh, a writ petition was moved in the High Court and a prayer for quashing that order was made. The High Court dealt with the dispute on merits and held that the order of the Board of Revenue holding that because of the Matmi Rules the adoption of Jai Singh by Sabhal Singh without the previous sanctions of the Ruler could not be recognized for the purpose of determining the succession to the Jagir was erroneous. The High Court did in making the final order direct the Tribunal to decide the case in accordance with the law and in the light of the observations made in the judgment, but the direction was, in our judgment, a surplusage. The High Court issued a writ in the nature of certiorari quashing the order of the Tribunal. It was unnecessary thereafter to direct or advise the Board of Revenue to perform its statutory duty to decide the dispute according to law. The Board of Revenue had to decide the dispute in accordance with the law declared by the High Court. All questions which had been expressly decided by the High Court on contest between the parties and other questions which must be deemed by necessary implication to have been decided were res judicata and could not be reopened before the Board of Revenue. In this appeal it is therefore not open to the appellant to contend that the decision of the High Court on the questions decided in the writ petition was erroneous9.It is unfortunate that the application for certificate to appeal to this Court filed by Sobhag Singh was erroneously rejected by the High Court. But that does not affect the binding character of the judgment of the High Court between the parties. Unless the decision of the High Court on those questions was set aside by appropriate proceeding in this Court, the judgment must be held binding between the parties. It is, therefore, not open to the appellant to contended that the right of Jai Singh as the adopted son to the Jagir had to be decided otherwise than in accordance with the personal law of Sabhal Singh. It is undisputed that according to the personal law applicable to Sabhal Singh, Jai Singh could have been adopted by him10.It was somewhat faintly contented by counsel for the appellant that if the judgment of the High Court is regarded as binding between the parties, the equal protection clause of the Constitution would be violated, and on that account also the judgment must he held invalid. The argument needs no serious consideration. It is difficult to appreciate the contention that two persons similarly situate were or could be differently treated by the judgment of the Board of Revenue, because the decision of the High Court operates as res judicata between the parties in one case. By the application of the rule of res judicata the appellant was not singled out for special or prejudicial treatment. It may suffice to observe that all adoptions according to the personal law in the State of Jaipur made by Jagirdars before the promulgation of the Matmi Rules are valid, even if no sanction of the Ruler was obtained to the adoptions. That rule applies to all adoptions by Japir cars in the State of Jaipur | 0 | 3,310 | 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.
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rule of interpretation or in any judgment, decision, decree or order of any court. and notwithstanding any omission or defect "of form, procedure or want of any competent sanction or approval, it is hereby declared that the Jaipur Matmi Rules. 1945, published in the Jaipur Gazette Extraordinary, dated the 8th December, 1945, under Revenue Branch Notification No. 15941/Rev, dated 24th Novembers 1945, shall have and shall be deemed always to have had, the force of law and shall be treated as being and as having been an "existing Jagir law" within the meaning of Clause (d) of Section 2 of the Rajasthan Land Reforms and Resumption of Jagirs Act. 1952 (Rajasthan Act 6 of 1952) for the purpose of that Act as well as of the Rajasthan Jagir Decisions and Proceedings (Validation) Act, 1955 (Rajasthan Act 18 of 1955), and any other law relating to Jagirs or Jagirdars." But the Act did not supersede the judgment of the High Court. The Board of Revenue was therefore incompetent to consider and decide the question whether the Government may in the absence of the previous sanction of the Government refuse to recognise the adoption of Jai Singh.The Act again merely declares that the Matmi Rules shall be deemed always to have the force of law and shall be treated as being "existing Jagir law" within the meaning of Clause (d) of Section 2 of the Rajasthan Land Reforms and Resumption of Jagirs Act 6 of 1932 and Rajasthan Act 18 of 1955. But the Act does not purport to give retrospective operation to the Jaipur Matmi Rules. It is futile then to contend that the Board of Revenue before determining the question as to the factum of adoption of Jai Singh was required to consider whether the adoption was invalid, because sanction of the Ruler of Jaipur was not previously obtained by Sabhal Singh before taking Jai Singh in adoption. 8.The High Court also held in the writ petition that on the death of the holder l of the Jagir without having any issue the Jagir will vest in his adopted son in act ordnance with the personal law. That finding is now res judicata and is binding upon the parties. Counsel for the appellant contended that the order passed by the High Court was an interlocutory order remanding the proceeding to the Board of Revenue, and on that account the decision of the High Court will not operate as res judicata either before the Board of Revenue or in this Court. We are unable to accept that contention. Against the order of the Board of Revenue rejecting the claim of Jai Singh to be recognized as the adopted son of Sabhal Singh, a writ petition was moved in the High Court and a prayer for quashing that order was made. The High Court dealt with the dispute on merits and held that the order of the Board of Revenue holding that because of the Matmi Rules the adoption of Jai Singh by Sabhal Singh without the previous sanctions of the Ruler could not be recognized for the purpose of determining the succession to the Jagir was erroneous. The High Court did in making the final order direct the Tribunal to decide the case in accordance with the law and in the light of the observations made in the judgment, but the direction was, in our judgment, a surplusage. The High Court issued a writ in the nature of certiorari quashing the order of the Tribunal. It was unnecessary thereafter to direct or advise the Board of Revenue to perform its statutory duty to decide the dispute according to law. The Board of Revenue had to decide the dispute in accordance with the law declared by the High Court. All questions which had been expressly decided by the High Court on contest between the parties and other questions which must be deemed by necessary implication to have been decided were res judicata and could not be reopened before the Board of Revenue. In this appeal it is therefore not open to the appellant to contend that the decision of the High Court on the questions decided in the writ petition was erroneous. 9.It is unfortunate that the application for certificate to appeal to this Court filed by Sobhag Singh was erroneously rejected by the High Court. But that does not affect the binding character of the judgment of the High Court between the parties. Unless the decision of the High Court on those questions was set aside by appropriate proceeding in this Court, the judgment must be held binding between the parties. It is, therefore, not open to the appellant to contended that the right of Jai Singh as the adopted son to the Jagir had to be decided otherwise than in accordance with the personal law of Sabhal Singh. It is undisputed that according to the personal law applicable to Sabhal Singh, Jai Singh could have been adopted by him. 10.It was somewhat faintly contented by counsel for the appellant that if the judgment of the High Court is regarded as binding between the parties, the equal protection clause of the Constitution would be violated, and on that account also the judgment must he held invalid. The argument needs no serious consideration. It is difficult to appreciate the contention that two persons similarly situate were or could be differently treated by the judgment of the Board of Revenue, because the decision of the High Court operates as res judicata between the parties in one case. By the application of the rule of res judicata the appellant was not singled out for special or prejudicial treatment. It may suffice to observe that all adoptions according to the personal law in the State of Jaipur made by Jagirdars before the promulgation of the Matmi Rules are valid, even if no sanction of the Ruler was obtained to the adoptions. That rule applies to all adoptions by Japir cars in the State of Jaipur
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### Explanation:
In the opinion of the High Court, the Jagir devolved according to the personal law applicable to the last holder, and the personal law included the custom or usage relating to the particular Jagir; that the custom or usage applicable to the Jagir in question was that the adopted son must be a direct male lineal descendant of the original grantee, and that Nahar Singh was the original grantee of the Jagir in question and Jai Singh as a descendant of Nahar Singh was entitled to take the Jagir if it was proved that the adoption had been made in accordance with the personal law, that the Matmi Rules had no statutory force because it was not proved that assent of the Ruler of Jaipur had been given thereto, and that even assuming that the Rules were "existing Jagir law" they did not govern adoptions made before they were brought into force. An application for certificate to appeal to this Court against the judgment of the High Court under Article 133 of the Constitution was rejected on the ground that the dispute had not been finally decided and a number of issues remained to be decided8.The High Court also held in the writ petition that on the death of the holder l of the Jagir without having any issue the Jagir will vest in his adopted son in act ordnance with the personal law. That finding is now res judicata and is binding upon the parties. Counsel for the appellant contended that the order passed by the High Court was an interlocutory order remanding the proceeding to the Board of Revenue, and on that account the decision of the High Court will not operate as res judicata either before the Board of Revenue or in this Court. We are unable to accept that contention. Against the order of the Board of Revenue rejecting the claim of Jai Singh to be recognized as the adopted son of Sabhal Singh, a writ petition was moved in the High Court and a prayer for quashing that order was made. The High Court dealt with the dispute on merits and held that the order of the Board of Revenue holding that because of the Matmi Rules the adoption of Jai Singh by Sabhal Singh without the previous sanctions of the Ruler could not be recognized for the purpose of determining the succession to the Jagir was erroneous. The High Court did in making the final order direct the Tribunal to decide the case in accordance with the law and in the light of the observations made in the judgment, but the direction was, in our judgment, a surplusage. The High Court issued a writ in the nature of certiorari quashing the order of the Tribunal. It was unnecessary thereafter to direct or advise the Board of Revenue to perform its statutory duty to decide the dispute according to law. The Board of Revenue had to decide the dispute in accordance with the law declared by the High Court. All questions which had been expressly decided by the High Court on contest between the parties and other questions which must be deemed by necessary implication to have been decided were res judicata and could not be reopened before the Board of Revenue. In this appeal it is therefore not open to the appellant to contend that the decision of the High Court on the questions decided in the writ petition was erroneous9.It is unfortunate that the application for certificate to appeal to this Court filed by Sobhag Singh was erroneously rejected by the High Court. But that does not affect the binding character of the judgment of the High Court between the parties. Unless the decision of the High Court on those questions was set aside by appropriate proceeding in this Court, the judgment must be held binding between the parties. It is, therefore, not open to the appellant to contended that the right of Jai Singh as the adopted son to the Jagir had to be decided otherwise than in accordance with the personal law of Sabhal Singh. It is undisputed that according to the personal law applicable to Sabhal Singh, Jai Singh could have been adopted by him10.It was somewhat faintly contented by counsel for the appellant that if the judgment of the High Court is regarded as binding between the parties, the equal protection clause of the Constitution would be violated, and on that account also the judgment must he held invalid. The argument needs no serious consideration. It is difficult to appreciate the contention that two persons similarly situate were or could be differently treated by the judgment of the Board of Revenue, because the decision of the High Court operates as res judicata between the parties in one case. By the application of the rule of res judicata the appellant was not singled out for special or prejudicial treatment. It may suffice to observe that all adoptions according to the personal law in the State of Jaipur made by Jagirdars before the promulgation of the Matmi Rules are valid, even if no sanction of the Ruler was obtained to the adoptions. That rule applies to all adoptions by Japir cars in the State of Jaipur
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Amarendra Komalam Vs. Usha Sinha | dated 2.9.1978 which stands settled between the same parties by the orders of the High Court and affirmed by this Court in regard to the same subject matter can be allowed to be raised in another proceedings between the very same parties in the same Court.2. Whether the sub-Judge failed to appreciate that respondent No.1 is precluded from raising the issue of interpolation in agreement dated 2.9.1978 in the course of examination and he is precluded on the principle of issue estoppels and res judicata.3. Whether respondent No.1 who gave her undertaking in Civil Revision No. 18 of 1999 that she would not raise the question of interpolation in the said agreement and on the basis of which the order dated 15.2.1999 was passed by the High Court and affirmed in Civil Review and also subsequently in the Special Leave Petition filed by her before this Court can be allowed to raise the very same issue again in another suit filed by her.4. Whether respondent No.1 is precluded from alleging interpolation in renewal clause of agreement dated 2.9.1978 when the said fact was otherwise admitted by her that she will never raise the issue of interpolation." 24. We have carefully perused the entire pleadings and the various documents annexed along with this appeal including the agreement.25. In our opinion, the High Court has miserably failed to appreciate that the undertaking of first respondent in Civil Revision No. 18 of 1999 that she will not raise the issue of interpolation is binding on her in the present suit and as such she was barred by the principles of res judicata, waiver and estoppel from being allowed to raise the same issue again between the very same parties in relation to the same subject matter. The Agreement dated 02.09.1978 is an admitted document. Respondent No.1 had sought to raise the issue of its forgery in earlier proceedings, but finally undertook not to do so. This was recorded by the High Court and the Civil Revision filed by respondent No.1 was disposed of accordingly. Later respondent No.1 sought to resile from her stand and filed an application for review before the High Court, which was also dismissed. The said order was challenged in Special Leave Petition (Civil) No. 16513 of 2001. This Court dismissed the same after hearing the parties at the stage of final disposal. In that view of the matter, we are of the opinion that the respondent is precluded from raising the same issue of interpolation/forgery in the renewal clause of the said agreement deed again.26. The undertaking and the acceptance not to raise the issue of interpolation is a matter of record. It is well settled that once a issue of fact has been judicially determined finally between the parties by a Court of competent jurisdiction and the same issue comes directly in question in subsequent proceedings between the same parties then the persons cannot be allowed to raise the same question which already stands determined earlier by the competent Court. For that the question of interpolation in the renewal clause of the said deed has been finally decided and the same issue has been raised in the present suit when in both the suits the parties are the same and the basic claim of both the parties are same as in eviction suit, the plaintiff is claiming eviction by termination of lease and denying the renewal clause whereas in the specific performance suit, the appellants are claiming the renewal of the lease on the basis of the said renewal clause. Hence in both the suits, the main issue is substantially and materially one and the same and both the cases are being tried simultaneously. This apart, the judgment of the High Court and of this Court is a judgment in personam which is binding upon both the parties. It is also seen that the order dated 15.02.1999 in Civil Revision is a consent order which creates an estoppel by judgment as the judgment dated 15.02.1999 operates as estoppel as records of the findings are essential to ascertain the judgment. By passing of the impugned judgment, the High Court has virtually allowed the suit in favour of respondent No.1. In any view of the matter, the impugned order is bad in law and fact as well and, therefore, the same is liable to be set aside.27. In our view, respondent No.1 wants to revive the dispute which has finally set at rest by this Court by challenging the genuineness of the agreement dated 02.09.1978 on the plea that the said order was passed in Title suit No. 382 of 1993 which has no binding effect in the present case. In our view, respondent No.1 cannot be allowed to challenge the genuineness of the agreement dated 02.09.1978. 28. We are told that in the Title Suit No. 382 of 1993 filed by respondent No.1 herein against the appellant, after examining five witnesses, the respondent has closed the evidence and now the defendant-appellant herein are examining their witnesses. In Title Suit No. 15 of 1996, the plaintiff-appellant herein have closed the evidence after examining 31 witnesses. The defendant-respondent herein has commenced her witnesses. Three witnesses have already been examined and only one witness remains to be examined. We, therefore, restrict respondent No.1, Smt. Usha Sinha, from putting any question challenging the genuineness of the agreement dated 2.9.1978 in the light of our findings made above. It is stated that some witnesses have already been examined on both the sides. If any question is put and any answer is extracted with regard to the genuineness/interpolation or forgery of agreement dated 02.09.1978, the said evidence cannot be looked into by the trial Court and should be eschewed from consideration and the judgment be passed on the merits of the rival claims on other related issues. 29. We answer all the questions in favour of the appellant and hold that respondent No.1 is precluded from raising the genuineness/interpolation or forgery of agreement dated 02.09.1978. | 1[ds]24. We have carefully perused the entire pleadings and the various documents annexed along with this appeal including the agreement.25. In our opinion, the High Court has miserably failed to appreciate that the undertaking of first respondent in Civil Revision No. 18 of 1999 that she will not raise the issue of interpolation is binding on her in the present suit and as such she was barred by the principles of res judicata, waiver and estoppel from being allowed to raise the same issue again between the very same parties in relation to the same subject matter. The Agreement dated 02.09.1978 is an admitted document. Respondent No.1 had sought to raise the issue of its forgery in earlier proceedings, but finally undertook not to do so. This was recorded by the High Court and the Civil Revision filed by respondent No.1 was disposed of accordingly. Later respondent No.1 sought to resile from her stand and filed an application for review before the High Court, which was also dismissed. The said order was challenged in Special Leave Petition (Civil) No. 16513 of 2001. This Court dismissed the same after hearing the parties at the stage of final disposal. In that view of the matter, we are of the opinion that the respondent is precluded from raising the same issue of interpolation/forgery in the renewal clause of the said agreement deed again.26. The undertaking and the acceptance not to raise the issue of interpolation is a matter of record. It is well settled that once a issue of fact has been judicially determined finally between the parties by a Court of competent jurisdiction and the same issue comes directly in question in subsequent proceedings between the same parties then the persons cannot be allowed to raise the same question which already stands determined earlier by the competent Court. For that the question of interpolation in the renewal clause of the said deed has been finally decided and the same issue has been raised in the present suit when in both the suits the parties are the same and the basic claim of both the parties are same as in eviction suit, the plaintiff is claiming eviction by termination of lease and denying the renewal clause whereas in the specific performance suit, the appellants are claiming the renewal of the lease on the basis of the said renewal clause. Hence in both the suits, the main issue is substantially and materially one and the same and both the cases are being tried simultaneously. This apart, the judgment of the High Court and of this Court is a judgment in personam which is binding upon both the parties. It is also seen that the order dated 15.02.1999 in Civil Revision is a consent order which creates an estoppel by judgment as the judgment dated 15.02.1999 operates as estoppel as records of the findings are essential to ascertain the judgment. By passing of the impugned judgment, the High Court has virtually allowed the suit in favour of respondent No.1. In any view of the matter, the impugned order is bad in law and fact as well and, therefore, the same is liable to be set aside.27. In our view, respondent No.1 wants to revive the dispute which has finally set at rest by this Court by challenging the genuineness of the agreement dated 02.09.1978 on the plea that the said order was passed in Title suit No. 382 of 1993 which has no binding effect in the present case. In our view, respondent No.1 cannot be allowed to challenge the genuineness of the agreement dated 02.09.1978.We answer all the questions in favour of the appellant and hold that respondent No.1 is precluded from raising the genuineness/interpolation or forgery of agreement dated 02.09.1978. | 1 | 4,873 | 673 | ### 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:
dated 2.9.1978 which stands settled between the same parties by the orders of the High Court and affirmed by this Court in regard to the same subject matter can be allowed to be raised in another proceedings between the very same parties in the same Court.2. Whether the sub-Judge failed to appreciate that respondent No.1 is precluded from raising the issue of interpolation in agreement dated 2.9.1978 in the course of examination and he is precluded on the principle of issue estoppels and res judicata.3. Whether respondent No.1 who gave her undertaking in Civil Revision No. 18 of 1999 that she would not raise the question of interpolation in the said agreement and on the basis of which the order dated 15.2.1999 was passed by the High Court and affirmed in Civil Review and also subsequently in the Special Leave Petition filed by her before this Court can be allowed to raise the very same issue again in another suit filed by her.4. Whether respondent No.1 is precluded from alleging interpolation in renewal clause of agreement dated 2.9.1978 when the said fact was otherwise admitted by her that she will never raise the issue of interpolation." 24. We have carefully perused the entire pleadings and the various documents annexed along with this appeal including the agreement.25. In our opinion, the High Court has miserably failed to appreciate that the undertaking of first respondent in Civil Revision No. 18 of 1999 that she will not raise the issue of interpolation is binding on her in the present suit and as such she was barred by the principles of res judicata, waiver and estoppel from being allowed to raise the same issue again between the very same parties in relation to the same subject matter. The Agreement dated 02.09.1978 is an admitted document. Respondent No.1 had sought to raise the issue of its forgery in earlier proceedings, but finally undertook not to do so. This was recorded by the High Court and the Civil Revision filed by respondent No.1 was disposed of accordingly. Later respondent No.1 sought to resile from her stand and filed an application for review before the High Court, which was also dismissed. The said order was challenged in Special Leave Petition (Civil) No. 16513 of 2001. This Court dismissed the same after hearing the parties at the stage of final disposal. In that view of the matter, we are of the opinion that the respondent is precluded from raising the same issue of interpolation/forgery in the renewal clause of the said agreement deed again.26. The undertaking and the acceptance not to raise the issue of interpolation is a matter of record. It is well settled that once a issue of fact has been judicially determined finally between the parties by a Court of competent jurisdiction and the same issue comes directly in question in subsequent proceedings between the same parties then the persons cannot be allowed to raise the same question which already stands determined earlier by the competent Court. For that the question of interpolation in the renewal clause of the said deed has been finally decided and the same issue has been raised in the present suit when in both the suits the parties are the same and the basic claim of both the parties are same as in eviction suit, the plaintiff is claiming eviction by termination of lease and denying the renewal clause whereas in the specific performance suit, the appellants are claiming the renewal of the lease on the basis of the said renewal clause. Hence in both the suits, the main issue is substantially and materially one and the same and both the cases are being tried simultaneously. This apart, the judgment of the High Court and of this Court is a judgment in personam which is binding upon both the parties. It is also seen that the order dated 15.02.1999 in Civil Revision is a consent order which creates an estoppel by judgment as the judgment dated 15.02.1999 operates as estoppel as records of the findings are essential to ascertain the judgment. By passing of the impugned judgment, the High Court has virtually allowed the suit in favour of respondent No.1. In any view of the matter, the impugned order is bad in law and fact as well and, therefore, the same is liable to be set aside.27. In our view, respondent No.1 wants to revive the dispute which has finally set at rest by this Court by challenging the genuineness of the agreement dated 02.09.1978 on the plea that the said order was passed in Title suit No. 382 of 1993 which has no binding effect in the present case. In our view, respondent No.1 cannot be allowed to challenge the genuineness of the agreement dated 02.09.1978. 28. We are told that in the Title Suit No. 382 of 1993 filed by respondent No.1 herein against the appellant, after examining five witnesses, the respondent has closed the evidence and now the defendant-appellant herein are examining their witnesses. In Title Suit No. 15 of 1996, the plaintiff-appellant herein have closed the evidence after examining 31 witnesses. The defendant-respondent herein has commenced her witnesses. Three witnesses have already been examined and only one witness remains to be examined. We, therefore, restrict respondent No.1, Smt. Usha Sinha, from putting any question challenging the genuineness of the agreement dated 2.9.1978 in the light of our findings made above. It is stated that some witnesses have already been examined on both the sides. If any question is put and any answer is extracted with regard to the genuineness/interpolation or forgery of agreement dated 02.09.1978, the said evidence cannot be looked into by the trial Court and should be eschewed from consideration and the judgment be passed on the merits of the rival claims on other related issues. 29. We answer all the questions in favour of the appellant and hold that respondent No.1 is precluded from raising the genuineness/interpolation or forgery of agreement dated 02.09.1978.
### Response:
1
### Explanation:
24. We have carefully perused the entire pleadings and the various documents annexed along with this appeal including the agreement.25. In our opinion, the High Court has miserably failed to appreciate that the undertaking of first respondent in Civil Revision No. 18 of 1999 that she will not raise the issue of interpolation is binding on her in the present suit and as such she was barred by the principles of res judicata, waiver and estoppel from being allowed to raise the same issue again between the very same parties in relation to the same subject matter. The Agreement dated 02.09.1978 is an admitted document. Respondent No.1 had sought to raise the issue of its forgery in earlier proceedings, but finally undertook not to do so. This was recorded by the High Court and the Civil Revision filed by respondent No.1 was disposed of accordingly. Later respondent No.1 sought to resile from her stand and filed an application for review before the High Court, which was also dismissed. The said order was challenged in Special Leave Petition (Civil) No. 16513 of 2001. This Court dismissed the same after hearing the parties at the stage of final disposal. In that view of the matter, we are of the opinion that the respondent is precluded from raising the same issue of interpolation/forgery in the renewal clause of the said agreement deed again.26. The undertaking and the acceptance not to raise the issue of interpolation is a matter of record. It is well settled that once a issue of fact has been judicially determined finally between the parties by a Court of competent jurisdiction and the same issue comes directly in question in subsequent proceedings between the same parties then the persons cannot be allowed to raise the same question which already stands determined earlier by the competent Court. For that the question of interpolation in the renewal clause of the said deed has been finally decided and the same issue has been raised in the present suit when in both the suits the parties are the same and the basic claim of both the parties are same as in eviction suit, the plaintiff is claiming eviction by termination of lease and denying the renewal clause whereas in the specific performance suit, the appellants are claiming the renewal of the lease on the basis of the said renewal clause. Hence in both the suits, the main issue is substantially and materially one and the same and both the cases are being tried simultaneously. This apart, the judgment of the High Court and of this Court is a judgment in personam which is binding upon both the parties. It is also seen that the order dated 15.02.1999 in Civil Revision is a consent order which creates an estoppel by judgment as the judgment dated 15.02.1999 operates as estoppel as records of the findings are essential to ascertain the judgment. By passing of the impugned judgment, the High Court has virtually allowed the suit in favour of respondent No.1. In any view of the matter, the impugned order is bad in law and fact as well and, therefore, the same is liable to be set aside.27. In our view, respondent No.1 wants to revive the dispute which has finally set at rest by this Court by challenging the genuineness of the agreement dated 02.09.1978 on the plea that the said order was passed in Title suit No. 382 of 1993 which has no binding effect in the present case. In our view, respondent No.1 cannot be allowed to challenge the genuineness of the agreement dated 02.09.1978.We answer all the questions in favour of the appellant and hold that respondent No.1 is precluded from raising the genuineness/interpolation or forgery of agreement dated 02.09.1978.
|
State Of Punjab And Another Vs. Shamlal Murari & Anr | away, we may indicate that we are not impressed with the States contention that the failure to pass the departmental test by the Government servant concerned, after having put in more than two decades of service cannot stand in the way of his enjoying the benefits of increments, etc., particularly because he had been accorded exemption. Passing petty tests after a petrifying length of dull official service is an odd insistence except in important levels of work. That apart, we see no reason to differ from the learned single Judges finding on this matter. That should put the lid on this appeal but the concern of the State is to set right the law regarding rule 3 above mentioned.4. Counsel for the State contends that a large number of appeals will be affected by the interpretation of r. 3 of the Punjab &Haryana High Court Rules and orders, Vol. 5, Chap 2-C by the Full Bench in Bikram Dass (supra). What is pressed before us is that r. 3 which requires, in terms, that three typed copies of (a) the memorandum of appeal, (b) judgment appealed from, and (c) the paper book which was before the Judge from whose judgment the appeal is preferred, is not mandatory, although the Full Bench has chosen to hold that it is obligatory to comply with them if the appeal is to be entertained at all. We do not agree that this fatal consequence should necessarily follow even if there is a minor deviation in fulfillling the requirements of r. 3.5. It is appropriate at this stage to extract r. 3 which runs as follows:-"3. No appeal under clause 10 of the Letters Patent will be received by the Deputy Registrar unless it is accompanied by three typed copies of the following:-(a) Memorandum of appeal;(b) Judgment appealed from, and(c) Paper book which was before the Judge from hose judgment the appeal is preferred."6. It is true that, in form, the rule strikes a mandatory note and, in design, is intended to facilitate a plurality of judges hearing the appeal, each equipped with a set of relevant papers. May be, there is force in the view taken by the Full Bench that certain basic records must be before the Court along with the appeal if the Court is to function satisfactorily in the exercise of its appellate power. In this sense, the needs of the rule transcend the directory level and may, perhaps, be considered a mandatory need. The use of shall -a word of slippery semantics-in a rule is not decisive and the context of the statute the purpose of the prescription, the public in jury in the event of neglect of the rule and the conspectus of the circumstances bearing on the importance of the condition, have all to be considered before condemning a violation as fatal.7. It is obvious that even taking a stern view, every minor detail in r. 3 cannot carry a compulsory or imperative import. After all what is required for the Judges to dispose of the appeal is the memorandum of appeal plus the judgment and the paper book. Three copies would certainly be a great advantage, but what is the core of the matter is not the number but the presence, and the over-emphasis laid by the Court on three copies is, we think, mistaken. Perhaps, the rule requires three copies and failure to comply therewith may be an irregularity. Had no copy been furnished of any one of the three items, the result might have been different. In the present case, copies of all the three documents prescribed, have been furnished but not three copies of each. This omission or default is only a breach which can be characterised as an irregularity to be corrected by condonation on application by the party fulfillling the condition within a time allowed by the Court. We must always remember that processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. It has been wisely observed that procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice. Where the non-compliance, tho procedural, will thwart fair hearing or prejudice doing of justice to parties, the rule is mandatory. But, grammar apart, if the breach can be corrected without injury to a just disposal of the case, we should not enthrone a regulatory requirement into a dominant desideratum. After, all Courts are to do justice, not to wreck this end product on technicalities. Viewed in this perspective, even what is regarded as mandatory traditionally may, perhaps, have to be moderated into wholesome directions to be complied with in time or in extended time. Be that as it may, and ignoring for a moment the exploration of the true office of procedural conditions, we have no doubt that what is of the essence of r. 3 is not that three copies should be furnished, but that copies of all the three important documents referred to in that rule, shall be produced. We further feel that the Court should, if it thinks it necessitous , exercise its discretion and grant further time for formal compliance with the rule if the copies fall short of the requisite Number. In this view and to the extent indicated, we over-rule the decision in Bikram Dasss (supra) case.The State h as yet another hurdle in its way. In the present case, an application for condonation of delay in filing the three copies re queried by r. 3 was made and the Court, in the exercise of its discretion, held that such condonation should not be granted. Discretionary exercise of power by a Court cannot be lightly interfered with by a Court of appeal, and we are loathe, therefore, to upset the order of the High Court declining to condone the delay, there being nothing perverse or irration al in the exercise. In this view also, the appellant has to lose. | 0[ds]Right away, we may indicate that we are not impressed with the States contention that the failure to pass the departmental test by the Government servant concerned, after having put in more than two decades of service cannot stand in the way of his enjoying the benefits of increments, etc., particularly because he had been accorded exemption. Passing petty tests after a petrifying length of dull official service is an odd insistence except in important levels of work. That apart, we see no reason to differ from the learned single Judges finding on this matter. That should put the lid on this appeal but the concern of the State is to set right the law regarding rule 3 above mentioned.We do not agree that this fatal consequence should necessarily follow even if there is a minor deviation in fulfillling the requirements of r.is obvious that even taking a stern view, every minor detail in r. 3 cannot carry a compulsory or imperative import. After all what is required for the Judges to dispose of the appeal is the memorandum of appeal plus the judgment and the paper book. Three copies would certainly be a great advantage, but what is the core of the matter is not the number but the presence, and the over-emphasis laid by the Court on three copies is, we think, mistaken. Perhaps, the rule requires three copies and failure to comply therewith may be an irregularity. Had no copy been furnished of any one of the three items, the result might have been different. In the present case, copies of all the three documents prescribed, have been furnished but not three copies of each. This omission or default is only a breach which can be characterised as an irregularity to be corrected by condonation on application by the party fulfillling the condition within a time allowed by the Court. We must always remember that processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. It has been wisely observed that procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice. Where the non-compliance, tho procedural, will thwart fair hearing or prejudice doing of justice to parties, the rule is mandatory. But, grammar apart, if the breach can be corrected without injury to a just disposal of the case, we should not enthrone a regulatory requirement into a dominant desideratum. After, all Courts are to do justice, not to wreck this end product on technicalities. Viewed in this perspective, even what is regarded as mandatory traditionally may, perhaps, have to be moderated into wholesome directions to be complied with in time or in extended time. Be that as it may, and ignoring for a moment the exploration of the true office of procedural conditions, we have no doubt that what is of the essence of r. 3 is not that three copies should be furnished, but that copies of all the three important documents referred to in that rule, shall be produced. We further feel that the Court should, if it thinks it necessitous , exercise its discretion and grant further time for formal compliance with the rule if the copies fall short of the requisite Number. In this view and to the extent indicated, we over-rule the decision in Bikram Dasss (supra) case.The State h as yet another hurdle in its way. In the present case, an application for condonation of delay in filing the three copies re queried by r. 3 was made and the Court, in the exercise of its discretion, held that such condonation should not be granted. Discretionary exercise of power by a Court cannot be lightly interfered with by a Court of appeal, and we are loathe, therefore, to upset the order of the High Court declining to condone the delay, there being nothing perverse or irration al in the exercise. In this view also, the appellant has to lose. | 0 | 1,520 | 740 | ### 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:
away, we may indicate that we are not impressed with the States contention that the failure to pass the departmental test by the Government servant concerned, after having put in more than two decades of service cannot stand in the way of his enjoying the benefits of increments, etc., particularly because he had been accorded exemption. Passing petty tests after a petrifying length of dull official service is an odd insistence except in important levels of work. That apart, we see no reason to differ from the learned single Judges finding on this matter. That should put the lid on this appeal but the concern of the State is to set right the law regarding rule 3 above mentioned.4. Counsel for the State contends that a large number of appeals will be affected by the interpretation of r. 3 of the Punjab &Haryana High Court Rules and orders, Vol. 5, Chap 2-C by the Full Bench in Bikram Dass (supra). What is pressed before us is that r. 3 which requires, in terms, that three typed copies of (a) the memorandum of appeal, (b) judgment appealed from, and (c) the paper book which was before the Judge from whose judgment the appeal is preferred, is not mandatory, although the Full Bench has chosen to hold that it is obligatory to comply with them if the appeal is to be entertained at all. We do not agree that this fatal consequence should necessarily follow even if there is a minor deviation in fulfillling the requirements of r. 3.5. It is appropriate at this stage to extract r. 3 which runs as follows:-"3. No appeal under clause 10 of the Letters Patent will be received by the Deputy Registrar unless it is accompanied by three typed copies of the following:-(a) Memorandum of appeal;(b) Judgment appealed from, and(c) Paper book which was before the Judge from hose judgment the appeal is preferred."6. It is true that, in form, the rule strikes a mandatory note and, in design, is intended to facilitate a plurality of judges hearing the appeal, each equipped with a set of relevant papers. May be, there is force in the view taken by the Full Bench that certain basic records must be before the Court along with the appeal if the Court is to function satisfactorily in the exercise of its appellate power. In this sense, the needs of the rule transcend the directory level and may, perhaps, be considered a mandatory need. The use of shall -a word of slippery semantics-in a rule is not decisive and the context of the statute the purpose of the prescription, the public in jury in the event of neglect of the rule and the conspectus of the circumstances bearing on the importance of the condition, have all to be considered before condemning a violation as fatal.7. It is obvious that even taking a stern view, every minor detail in r. 3 cannot carry a compulsory or imperative import. After all what is required for the Judges to dispose of the appeal is the memorandum of appeal plus the judgment and the paper book. Three copies would certainly be a great advantage, but what is the core of the matter is not the number but the presence, and the over-emphasis laid by the Court on three copies is, we think, mistaken. Perhaps, the rule requires three copies and failure to comply therewith may be an irregularity. Had no copy been furnished of any one of the three items, the result might have been different. In the present case, copies of all the three documents prescribed, have been furnished but not three copies of each. This omission or default is only a breach which can be characterised as an irregularity to be corrected by condonation on application by the party fulfillling the condition within a time allowed by the Court. We must always remember that processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. It has been wisely observed that procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice. Where the non-compliance, tho procedural, will thwart fair hearing or prejudice doing of justice to parties, the rule is mandatory. But, grammar apart, if the breach can be corrected without injury to a just disposal of the case, we should not enthrone a regulatory requirement into a dominant desideratum. After, all Courts are to do justice, not to wreck this end product on technicalities. Viewed in this perspective, even what is regarded as mandatory traditionally may, perhaps, have to be moderated into wholesome directions to be complied with in time or in extended time. Be that as it may, and ignoring for a moment the exploration of the true office of procedural conditions, we have no doubt that what is of the essence of r. 3 is not that three copies should be furnished, but that copies of all the three important documents referred to in that rule, shall be produced. We further feel that the Court should, if it thinks it necessitous , exercise its discretion and grant further time for formal compliance with the rule if the copies fall short of the requisite Number. In this view and to the extent indicated, we over-rule the decision in Bikram Dasss (supra) case.The State h as yet another hurdle in its way. In the present case, an application for condonation of delay in filing the three copies re queried by r. 3 was made and the Court, in the exercise of its discretion, held that such condonation should not be granted. Discretionary exercise of power by a Court cannot be lightly interfered with by a Court of appeal, and we are loathe, therefore, to upset the order of the High Court declining to condone the delay, there being nothing perverse or irration al in the exercise. In this view also, the appellant has to lose.
### Response:
0
### Explanation:
Right away, we may indicate that we are not impressed with the States contention that the failure to pass the departmental test by the Government servant concerned, after having put in more than two decades of service cannot stand in the way of his enjoying the benefits of increments, etc., particularly because he had been accorded exemption. Passing petty tests after a petrifying length of dull official service is an odd insistence except in important levels of work. That apart, we see no reason to differ from the learned single Judges finding on this matter. That should put the lid on this appeal but the concern of the State is to set right the law regarding rule 3 above mentioned.We do not agree that this fatal consequence should necessarily follow even if there is a minor deviation in fulfillling the requirements of r.is obvious that even taking a stern view, every minor detail in r. 3 cannot carry a compulsory or imperative import. After all what is required for the Judges to dispose of the appeal is the memorandum of appeal plus the judgment and the paper book. Three copies would certainly be a great advantage, but what is the core of the matter is not the number but the presence, and the over-emphasis laid by the Court on three copies is, we think, mistaken. Perhaps, the rule requires three copies and failure to comply therewith may be an irregularity. Had no copy been furnished of any one of the three items, the result might have been different. In the present case, copies of all the three documents prescribed, have been furnished but not three copies of each. This omission or default is only a breach which can be characterised as an irregularity to be corrected by condonation on application by the party fulfillling the condition within a time allowed by the Court. We must always remember that processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. It has been wisely observed that procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice. Where the non-compliance, tho procedural, will thwart fair hearing or prejudice doing of justice to parties, the rule is mandatory. But, grammar apart, if the breach can be corrected without injury to a just disposal of the case, we should not enthrone a regulatory requirement into a dominant desideratum. After, all Courts are to do justice, not to wreck this end product on technicalities. Viewed in this perspective, even what is regarded as mandatory traditionally may, perhaps, have to be moderated into wholesome directions to be complied with in time or in extended time. Be that as it may, and ignoring for a moment the exploration of the true office of procedural conditions, we have no doubt that what is of the essence of r. 3 is not that three copies should be furnished, but that copies of all the three important documents referred to in that rule, shall be produced. We further feel that the Court should, if it thinks it necessitous , exercise its discretion and grant further time for formal compliance with the rule if the copies fall short of the requisite Number. In this view and to the extent indicated, we over-rule the decision in Bikram Dasss (supra) case.The State h as yet another hurdle in its way. In the present case, an application for condonation of delay in filing the three copies re queried by r. 3 was made and the Court, in the exercise of its discretion, held that such condonation should not be granted. Discretionary exercise of power by a Court cannot be lightly interfered with by a Court of appeal, and we are loathe, therefore, to upset the order of the High Court declining to condone the delay, there being nothing perverse or irration al in the exercise. In this view also, the appellant has to lose.
|
SHYAM SUNDER OBEROI & ORS Vs. DISTRICT AND SESSION JUDGE TIS HAZARI COURT, DELHI & ORS | regularized from the dates of their initial appointment. It is another matter that the appellants did not undergo a written test but then they had worked for nearly seven years as LDCs when they were made to undergo the typing test. Again, pursuant to the judicial orders which were passed on 12th November, 1992 and 6th April, 1994, they underwent tests, but in a sense a modified test of where the written examination was dispensed with and they were made to give the typing-cumshorthand test in which they qualified. As already noticed, some of them had got a second chance pursuant to the order dated 6th April, 1994 of the Division Bench. Nevertheless, the fact remains that the present appellants passed the qualifying test they were expected to pass in order to be regularized. 18. While this Court concurs with the decision of the learned Single Judge that the dates of the regularization of the present appellants in the post from the date of their initial appointment on ad hoc basis in terms of the order dated 17th November, 2000 issued by the respondent no. 1 should be left undisturbed, this Court disagrees with the learned Single Judge that the seniority of the appellants would not count from those very dates of their regularization. 19. To that extent, the impugned order of the learned Single Judge is set aside. The net result is that the appellants will count their seniority from the dates of their respective regularization of the posts as LDCs. 13. We have heard learned counsel for the parties and perused the material available on record with their assistance. 14. The facts are not in dispute and culled out that the present group of appellants are the members of the ministerial cadre(LDC) appointed on substantive basis after going through the process of selection prescribed for holding regular selection after they have gone through the written test followed with the typing test in the year 1987. At the given point of time, the respondents were appointed on ad-hoc basis for a fixed term during the period 1983- 1989 and after they were granted exemption from appearing in the written test by the High Court in Civil Writ Petition No. 1820 of 1990 preferred at their instance, all of them qualified the typing test in the first or second attempt in the year 1992 or thereafter and were regularized by the District and Session Judge by an order dated 17th November, 2000 from the date of their initial appointment. So far as the question of seniority is concerned, it was specifically mentioned that it shall be separately determined in accordance with rules but as there were no rules/guidelines at that time for determining seniority of the employees of the ministerial cadre in the subordinate service of Delhi, a presumption was drawn as they were regularized from the date of appointment that entails consequential seniority but that came to be clarified by the learned Single Judge that they will not be entitled to claim seniority over such of the employees who were appointed on substantive basis unlike the present appellants but that came to be set aside by the Division Bench of the High Court by the impugned judgment dated 6 th December, 2018 primarily relying on the interim order passed by the High Court in the earlier proceedings dated 20th August 1992 which was in reference to panel of 180 candidates who qualified the typing test held pursuant to Orders passed by the High Court of Delhi dated 12th November, 1992 and 6th April, 1994 respectively. 15. Indisputedly, the Order dated 20th August, 1992 in no manner was related to determination of seniority qua the present appellants who were recruited through open selection after qualifying the written test followed by typing test in the year 1987. 16. In the facts and circumstances, a question certainly arises if the employees who were appointed in the first instance on ad-hoc basis for a fixed term which has been extended from time to time, and have qualified the typing test at a later point of time, which is one of the pre-qualification for regular/substantive appointment, can claim regularization from initial appointment but since the learned Single Judge and the Division Bench of the High Court in the impugned judgment have not interfered with the order passed by the District and Session Judge dated 17th November, 2000 in granting the benefit of regularization from the date of initial appointment, after such a long passage of time, it would not have been advisable for this Court to interfere so far as such appointees seeking regularization from the date of initial appointment although acquire the pre-requisite qualification at the later stage, but at the given point of time, the interim order dated 20th August, 1992 of the High Court in the earlier proceedings has been misread by the Division Bench of the High Court while passing the impugned judgment dated 6th December 2018. 17. We consider it appropriate to observe that the employees who were appointed on ad-hoc basis and qualified typing test at the later stage, in absence of the scheme of rules in determining seniority, at least could not have a right to march over such of the employees who were appointed on substantive basis after going through the process of selection for holding regular selection and their right of seniority in no manner be relegated qua such of the ad-hoc employees who qualified typing test at a later stage and regularized subsequently from the date of initial appointment like in the instant case by an Order dated 17th November, 2000. 18. In our considered view, the Division Bench has committed a manifest error under the impugned judgment in granting them the benefit of seniority who were appointed on ad-hoc basis as LDCs from the date of their regularization which was neither granted by the District and Session Judge by its Order dated 17th November, 2000 nor they were entitled for under the law. | 1[ds]15. Indisputedly, the Order dated 20th August, 1992 in no manner was related to determination of seniority qua the present appellants who were recruited through open selection after qualifying the written test followed by typing test in the year 1987.16. In the facts and circumstances, a question certainly arises if the employees who were appointed in the first instance on ad-hoc basis for a fixed term which has been extended from time to time, and have qualified the typing test at a later point of time, which is one of the pre-qualification for regular/substantive appointment, can claim regularization from initial appointment but since the learned Single Judge and the Division Bench of the High Court in the impugned judgment have not interfered with the order passed by the District and Session Judge dated 17th November, 2000 in granting the benefit of regularization from the date of initial appointment, after such a long passage of time, it would not have been advisable for this Court to interfere so far as such appointees seeking regularization from the date of initial appointment although acquire the pre-requisite qualification at the later stage, but at the given point of time, the interim order dated 20th August, 1992 of the High Court in the earlier proceedings has been misread by the Division Bench of the High Court while passing the impugned judgment dated 6th December 2018.17. We consider it appropriate to observe that the employees who were appointed on ad-hoc basis and qualified typing test at the later stage, in absence of the scheme of rules in determining seniority, at least could not have a right to march over such of the employees who were appointed on substantive basis after going through the process of selection for holding regular selection and their right of seniority in no manner be relegated qua such of the ad-hoc employees who qualified typing test at a later stage and regularized subsequently from the date of initial appointment like in the instant case by an Order dated 17th November, 2000.18. In our considered view, the Division Bench has committed a manifest error under the impugned judgment in granting them the benefit of seniority who were appointed on ad-hoc basis as LDCs from the date of their regularization which was neither granted by the District and Session Judge by its Order dated 17th November, 2000 nor they were entitled for under the law. | 1 | 2,534 | 427 | ### 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:
regularized from the dates of their initial appointment. It is another matter that the appellants did not undergo a written test but then they had worked for nearly seven years as LDCs when they were made to undergo the typing test. Again, pursuant to the judicial orders which were passed on 12th November, 1992 and 6th April, 1994, they underwent tests, but in a sense a modified test of where the written examination was dispensed with and they were made to give the typing-cumshorthand test in which they qualified. As already noticed, some of them had got a second chance pursuant to the order dated 6th April, 1994 of the Division Bench. Nevertheless, the fact remains that the present appellants passed the qualifying test they were expected to pass in order to be regularized. 18. While this Court concurs with the decision of the learned Single Judge that the dates of the regularization of the present appellants in the post from the date of their initial appointment on ad hoc basis in terms of the order dated 17th November, 2000 issued by the respondent no. 1 should be left undisturbed, this Court disagrees with the learned Single Judge that the seniority of the appellants would not count from those very dates of their regularization. 19. To that extent, the impugned order of the learned Single Judge is set aside. The net result is that the appellants will count their seniority from the dates of their respective regularization of the posts as LDCs. 13. We have heard learned counsel for the parties and perused the material available on record with their assistance. 14. The facts are not in dispute and culled out that the present group of appellants are the members of the ministerial cadre(LDC) appointed on substantive basis after going through the process of selection prescribed for holding regular selection after they have gone through the written test followed with the typing test in the year 1987. At the given point of time, the respondents were appointed on ad-hoc basis for a fixed term during the period 1983- 1989 and after they were granted exemption from appearing in the written test by the High Court in Civil Writ Petition No. 1820 of 1990 preferred at their instance, all of them qualified the typing test in the first or second attempt in the year 1992 or thereafter and were regularized by the District and Session Judge by an order dated 17th November, 2000 from the date of their initial appointment. So far as the question of seniority is concerned, it was specifically mentioned that it shall be separately determined in accordance with rules but as there were no rules/guidelines at that time for determining seniority of the employees of the ministerial cadre in the subordinate service of Delhi, a presumption was drawn as they were regularized from the date of appointment that entails consequential seniority but that came to be clarified by the learned Single Judge that they will not be entitled to claim seniority over such of the employees who were appointed on substantive basis unlike the present appellants but that came to be set aside by the Division Bench of the High Court by the impugned judgment dated 6 th December, 2018 primarily relying on the interim order passed by the High Court in the earlier proceedings dated 20th August 1992 which was in reference to panel of 180 candidates who qualified the typing test held pursuant to Orders passed by the High Court of Delhi dated 12th November, 1992 and 6th April, 1994 respectively. 15. Indisputedly, the Order dated 20th August, 1992 in no manner was related to determination of seniority qua the present appellants who were recruited through open selection after qualifying the written test followed by typing test in the year 1987. 16. In the facts and circumstances, a question certainly arises if the employees who were appointed in the first instance on ad-hoc basis for a fixed term which has been extended from time to time, and have qualified the typing test at a later point of time, which is one of the pre-qualification for regular/substantive appointment, can claim regularization from initial appointment but since the learned Single Judge and the Division Bench of the High Court in the impugned judgment have not interfered with the order passed by the District and Session Judge dated 17th November, 2000 in granting the benefit of regularization from the date of initial appointment, after such a long passage of time, it would not have been advisable for this Court to interfere so far as such appointees seeking regularization from the date of initial appointment although acquire the pre-requisite qualification at the later stage, but at the given point of time, the interim order dated 20th August, 1992 of the High Court in the earlier proceedings has been misread by the Division Bench of the High Court while passing the impugned judgment dated 6th December 2018. 17. We consider it appropriate to observe that the employees who were appointed on ad-hoc basis and qualified typing test at the later stage, in absence of the scheme of rules in determining seniority, at least could not have a right to march over such of the employees who were appointed on substantive basis after going through the process of selection for holding regular selection and their right of seniority in no manner be relegated qua such of the ad-hoc employees who qualified typing test at a later stage and regularized subsequently from the date of initial appointment like in the instant case by an Order dated 17th November, 2000. 18. In our considered view, the Division Bench has committed a manifest error under the impugned judgment in granting them the benefit of seniority who were appointed on ad-hoc basis as LDCs from the date of their regularization which was neither granted by the District and Session Judge by its Order dated 17th November, 2000 nor they were entitled for under the law.
### Response:
1
### Explanation:
15. Indisputedly, the Order dated 20th August, 1992 in no manner was related to determination of seniority qua the present appellants who were recruited through open selection after qualifying the written test followed by typing test in the year 1987.16. In the facts and circumstances, a question certainly arises if the employees who were appointed in the first instance on ad-hoc basis for a fixed term which has been extended from time to time, and have qualified the typing test at a later point of time, which is one of the pre-qualification for regular/substantive appointment, can claim regularization from initial appointment but since the learned Single Judge and the Division Bench of the High Court in the impugned judgment have not interfered with the order passed by the District and Session Judge dated 17th November, 2000 in granting the benefit of regularization from the date of initial appointment, after such a long passage of time, it would not have been advisable for this Court to interfere so far as such appointees seeking regularization from the date of initial appointment although acquire the pre-requisite qualification at the later stage, but at the given point of time, the interim order dated 20th August, 1992 of the High Court in the earlier proceedings has been misread by the Division Bench of the High Court while passing the impugned judgment dated 6th December 2018.17. We consider it appropriate to observe that the employees who were appointed on ad-hoc basis and qualified typing test at the later stage, in absence of the scheme of rules in determining seniority, at least could not have a right to march over such of the employees who were appointed on substantive basis after going through the process of selection for holding regular selection and their right of seniority in no manner be relegated qua such of the ad-hoc employees who qualified typing test at a later stage and regularized subsequently from the date of initial appointment like in the instant case by an Order dated 17th November, 2000.18. In our considered view, the Division Bench has committed a manifest error under the impugned judgment in granting them the benefit of seniority who were appointed on ad-hoc basis as LDCs from the date of their regularization which was neither granted by the District and Session Judge by its Order dated 17th November, 2000 nor they were entitled for under the law.
|
GODAVARI SUGAR MILLS LTD Vs. UNION OF INDIA | 1. The appellant herein is a company incorporated under the Indian Companies Act and has a sugar factory in the District of Bijapur in the State of Karnataka, where the appellant is carrying on business of manufacture of sugar. For the crushing year 1985-86, the appellant herein was required under the statutory order to sell 55% of levy sugar and rest 45% was meant for free sale. Under Sections 3, (3C) of the Essential Commodities Act (hereinafter referred to as the Act), the Central Government is empowered to fix the price of levy sugar keeping in regard to the minimum price, if any, fixed for sugarcane by the Central Government; the manufacturing cost of sugar; the duty or tax, if any, paid or payable thereon; and the securing of a reasonable return on the capital employed in the business of manufacturing sugar. It is alleged that the Central Government, for the crushing year 1985- 86, fixed the price of levy sugar at Rs. 362.76, which was subsequently increased to Rs. 365.42. The appellant was not satisfied with the fixation of the levy price and, therefore, challenged the said fixation of price by the Central Government by means of a petition under Article 226 of the Constitution before the Karnataka High Court. It was prayed therein, that the levy price was required to be refixed. A Single Judge of the High Court of Karnataka while entertaining the appellants petition, passed an order directing the Central Government to lift the levy sugar by paying a price of Rs. 375.77 per quintal of S-29 Grade with corresponding differentials for the other grades of sugar, subject to the petitioners furnishing bank guarantee to cover the difference. Ultimately, the said writ petition came up for hearing, but was dismissed by the High Court. 2. The appellant thereafter preferred a writ appeal before the Division Bench of the High Court, but the same was also dismissed. It is against the said judgment of the High Court, the appellant is before us. 3. While this matter was pending in this Court, a bench of three Judges in the case of Shri Malaprabha Coop. Sugar Factory Ltd. v. Union of India and Anr. - 1994 (1) SCC 648 held that while fixing the price for levy sugar under Sections 3 (3C) of the Act, the Central Government is also required to take into consideration the additional price paid by the sugar manufacturer to the sugarcane grower/society. On the strength of the said decision, learned counsel sought to amend the pleadings and urged that since in the present case also the Central Government has not taken into consideration the additional price paid by the appellant to the sugarcane grower, the price fixed for levy sugar by the Central Government has to be set aside and the Central Government be directed to refix the price of the levy sugar after taking into relevant conditions. It may be noticed that there was no pleading to this effect in the writ petition filed before the High Court and this question was also not raised before the high Court. It was only after this Court in Shri Malaprabha Coop. Sugar Factory Ltd. (supra) held that the additional price paid by the sugar factory has also to be taken into consideration while fixing the levy sugar price, the appellant has tried to amend the pleadings. Learned counsel, appearing for the Union of India, urged that for the crushing season in the year 1982-82, in the case of Modi Industries Ltd. & Anr. v. Union of India & Ors. - 1999 (9) SCC 245, an affidavit was filed on behalf of Union of India wherein it was stated that while determining the minimum cane price of levy sugar regard has been had only to the minimum cane price as spoken to in Section 3 (3-C) (a) of the Essential Commodities Act, 1955 and the additional cane price payable under clause 5-A of the Sugar (Control) Order, 1966, has not been taken into account, and that also there has been no mopping up of excess realisation on levy-free sale sugar while fixing the price of levy sugar for the season 1982-83. In view of the said affidavit, a Bench of three Judges in the said case held that the decision is not covered by Shri Malaprabha Coop. Sugar Factory Ltd. (supra). At present, we are not inclined to go into the question as we are of the view that at this belated stage, we should not permit the appellant to amend his pleadings and raise additional points. Moreover, in Shri Malaprabha Coop. Sugar Facotry Ltd. (supra), this Court referred to a passage from Judicial remedies in Public Law by Clive Lewis, which runs as under: The courts now recognise that the impact on the administration is relevant in the exercise of their remedial jurisdiction. Quashing decisions may impose heavy administrative burdens on the administration, divert resources towards reopening decision, and lead to increased and unbudgeted expenditure. Earlier cases took the robust line that the law had to be observed, and the decision invalidated whatever the administrative inconvenience caused. The courts nowadays recognise that such an approach is not always appropriate and may not be in the wider public interest. The effect on the administrative process is relevant to the courts remedial discretion and may prove decisive. | 1[ds]3. While this matter was pending in this Court, a bench of three Judges in the case of Shri Malaprabha Coop. Sugar Factory Ltd. v. Union of India and Anr. - 1994 (1) SCC 648 held that while fixing the price for levy sugar under Sections 3 (3C) of the Act, the Central Government is also required to take into consideration the additional price paid by the sugar manufacturer to the sugarcane grower/society. On the strength of the said decision, learned counsel sought to amend the pleadings and urged that since in the present case also the Central Government has not taken into consideration the additional price paid by the appellant to the sugarcane grower, the price fixed for levy sugar by the Central Government has to be set aside and the Central Government be directed to refix the price of the levy sugar after taking into relevant conditions. It may be noticed that there was no pleading to this effect in the writ petition filed before the High Court and this question was also not raised before the high Court. It was only after this Court in Shri Malaprabha Coop. Sugar Factory Ltd. (supra) held that the additional price paid by the sugar factory has also to be taken into consideration while fixing the levy sugar price, the appellant has tried to amend the pleadings. Learned counsel, appearing for the Union of India, urged that for the crushing season in the year 1982-82, in the case of Modi Industries Ltd. & Anr. v. Union of India & Ors. - 1999 (9) SCC 245, an affidavit was filed on behalf of Union of India wherein it was stated that while determining the minimum cane price of levy sugar regard has been had only to the minimum cane price as spoken to in Section 3 (3-C) (a) of the Essential Commodities Act, 1955 and the additional cane price payable under clause 5-A of the Sugar (Control) Order, 1966, has not been taken into account, and that also there has been no mopping up of excess realisation on levy-free sale sugar while fixing the price of levy sugar for the season 1982-83. In view of the said affidavit, a Bench of three Judges in the said case held that the decision is not covered by Shri Malaprabha Coop. Sugar Factory Ltd. (supra). At present, we are not inclined to go into the question as we are of the view that at this belated stage, we should not permit the appellant to amend his pleadings and raise additional points. Moreover, in Shri Malaprabha Coop. Sugar Facotry Ltd. (supra), this Court referred to a passage from Judicial remedies in Public Law by Clive Lewis, which runs as under:The courts now recognise that the impact on the administration is relevant in the exercise of their remedial jurisdiction. Quashing decisions may impose heavy administrative burdens on the administration, divert resources towards reopening decision, and lead to increased and unbudgeted expenditure. Earlier cases took the robust line that the law had to be observed, and the decision invalidated whatever the administrative inconvenience caused. The courts nowadays recognise that such an approach is not always appropriate and may not be in the wider public interest. The effect on the administrative process is relevant to the courts remedial discretion and may prove decisive. | 1 | 995 | 620 | ### 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:
1. The appellant herein is a company incorporated under the Indian Companies Act and has a sugar factory in the District of Bijapur in the State of Karnataka, where the appellant is carrying on business of manufacture of sugar. For the crushing year 1985-86, the appellant herein was required under the statutory order to sell 55% of levy sugar and rest 45% was meant for free sale. Under Sections 3, (3C) of the Essential Commodities Act (hereinafter referred to as the Act), the Central Government is empowered to fix the price of levy sugar keeping in regard to the minimum price, if any, fixed for sugarcane by the Central Government; the manufacturing cost of sugar; the duty or tax, if any, paid or payable thereon; and the securing of a reasonable return on the capital employed in the business of manufacturing sugar. It is alleged that the Central Government, for the crushing year 1985- 86, fixed the price of levy sugar at Rs. 362.76, which was subsequently increased to Rs. 365.42. The appellant was not satisfied with the fixation of the levy price and, therefore, challenged the said fixation of price by the Central Government by means of a petition under Article 226 of the Constitution before the Karnataka High Court. It was prayed therein, that the levy price was required to be refixed. A Single Judge of the High Court of Karnataka while entertaining the appellants petition, passed an order directing the Central Government to lift the levy sugar by paying a price of Rs. 375.77 per quintal of S-29 Grade with corresponding differentials for the other grades of sugar, subject to the petitioners furnishing bank guarantee to cover the difference. Ultimately, the said writ petition came up for hearing, but was dismissed by the High Court. 2. The appellant thereafter preferred a writ appeal before the Division Bench of the High Court, but the same was also dismissed. It is against the said judgment of the High Court, the appellant is before us. 3. While this matter was pending in this Court, a bench of three Judges in the case of Shri Malaprabha Coop. Sugar Factory Ltd. v. Union of India and Anr. - 1994 (1) SCC 648 held that while fixing the price for levy sugar under Sections 3 (3C) of the Act, the Central Government is also required to take into consideration the additional price paid by the sugar manufacturer to the sugarcane grower/society. On the strength of the said decision, learned counsel sought to amend the pleadings and urged that since in the present case also the Central Government has not taken into consideration the additional price paid by the appellant to the sugarcane grower, the price fixed for levy sugar by the Central Government has to be set aside and the Central Government be directed to refix the price of the levy sugar after taking into relevant conditions. It may be noticed that there was no pleading to this effect in the writ petition filed before the High Court and this question was also not raised before the high Court. It was only after this Court in Shri Malaprabha Coop. Sugar Factory Ltd. (supra) held that the additional price paid by the sugar factory has also to be taken into consideration while fixing the levy sugar price, the appellant has tried to amend the pleadings. Learned counsel, appearing for the Union of India, urged that for the crushing season in the year 1982-82, in the case of Modi Industries Ltd. & Anr. v. Union of India & Ors. - 1999 (9) SCC 245, an affidavit was filed on behalf of Union of India wherein it was stated that while determining the minimum cane price of levy sugar regard has been had only to the minimum cane price as spoken to in Section 3 (3-C) (a) of the Essential Commodities Act, 1955 and the additional cane price payable under clause 5-A of the Sugar (Control) Order, 1966, has not been taken into account, and that also there has been no mopping up of excess realisation on levy-free sale sugar while fixing the price of levy sugar for the season 1982-83. In view of the said affidavit, a Bench of three Judges in the said case held that the decision is not covered by Shri Malaprabha Coop. Sugar Factory Ltd. (supra). At present, we are not inclined to go into the question as we are of the view that at this belated stage, we should not permit the appellant to amend his pleadings and raise additional points. Moreover, in Shri Malaprabha Coop. Sugar Facotry Ltd. (supra), this Court referred to a passage from Judicial remedies in Public Law by Clive Lewis, which runs as under: The courts now recognise that the impact on the administration is relevant in the exercise of their remedial jurisdiction. Quashing decisions may impose heavy administrative burdens on the administration, divert resources towards reopening decision, and lead to increased and unbudgeted expenditure. Earlier cases took the robust line that the law had to be observed, and the decision invalidated whatever the administrative inconvenience caused. The courts nowadays recognise that such an approach is not always appropriate and may not be in the wider public interest. The effect on the administrative process is relevant to the courts remedial discretion and may prove decisive.
### Response:
1
### Explanation:
3. While this matter was pending in this Court, a bench of three Judges in the case of Shri Malaprabha Coop. Sugar Factory Ltd. v. Union of India and Anr. - 1994 (1) SCC 648 held that while fixing the price for levy sugar under Sections 3 (3C) of the Act, the Central Government is also required to take into consideration the additional price paid by the sugar manufacturer to the sugarcane grower/society. On the strength of the said decision, learned counsel sought to amend the pleadings and urged that since in the present case also the Central Government has not taken into consideration the additional price paid by the appellant to the sugarcane grower, the price fixed for levy sugar by the Central Government has to be set aside and the Central Government be directed to refix the price of the levy sugar after taking into relevant conditions. It may be noticed that there was no pleading to this effect in the writ petition filed before the High Court and this question was also not raised before the high Court. It was only after this Court in Shri Malaprabha Coop. Sugar Factory Ltd. (supra) held that the additional price paid by the sugar factory has also to be taken into consideration while fixing the levy sugar price, the appellant has tried to amend the pleadings. Learned counsel, appearing for the Union of India, urged that for the crushing season in the year 1982-82, in the case of Modi Industries Ltd. & Anr. v. Union of India & Ors. - 1999 (9) SCC 245, an affidavit was filed on behalf of Union of India wherein it was stated that while determining the minimum cane price of levy sugar regard has been had only to the minimum cane price as spoken to in Section 3 (3-C) (a) of the Essential Commodities Act, 1955 and the additional cane price payable under clause 5-A of the Sugar (Control) Order, 1966, has not been taken into account, and that also there has been no mopping up of excess realisation on levy-free sale sugar while fixing the price of levy sugar for the season 1982-83. In view of the said affidavit, a Bench of three Judges in the said case held that the decision is not covered by Shri Malaprabha Coop. Sugar Factory Ltd. (supra). At present, we are not inclined to go into the question as we are of the view that at this belated stage, we should not permit the appellant to amend his pleadings and raise additional points. Moreover, in Shri Malaprabha Coop. Sugar Facotry Ltd. (supra), this Court referred to a passage from Judicial remedies in Public Law by Clive Lewis, which runs as under:The courts now recognise that the impact on the administration is relevant in the exercise of their remedial jurisdiction. Quashing decisions may impose heavy administrative burdens on the administration, divert resources towards reopening decision, and lead to increased and unbudgeted expenditure. Earlier cases took the robust line that the law had to be observed, and the decision invalidated whatever the administrative inconvenience caused. The courts nowadays recognise that such an approach is not always appropriate and may not be in the wider public interest. The effect on the administrative process is relevant to the courts remedial discretion and may prove decisive.
|
Sheo Nath Singh Vs. Appellate Assistant Commissioner Ofincome Tax, Calcutta | there was an initial lack of jurisdiction.7. Section 34 (1-A) to the extent it is necessary, may be reproduced."34 (1-A). If, in the case of any assessee, the Income-tax Officer has reason to believe-(i) that income, profits or gains chargeable to income-tax have escaped assessment for any year in respect of which the relevant previous year falls. . .. .; and(ii) that the income, profits or gains which have so escaped assessment for any such year or years amount or are likely to amount to one lakh of rupees or more; he may. . .. serve on the assessee. . . .a notice containing. . . ,and may proceed to assess or reassess the income, profits or gains of the assessee . . . :Provided that the Income-tax Officer shall not issue a notice under this sub-section unless he has recorded his reasons for doing so and the Central Board of Revenue is satisfied on such reasons recorded that it is a fit case for the issue of such notice".8. Since nothing had been disclosed which was relevant for the purpose of finding out whether the Income Tax Officer had any reason to believe that the income, profits or gains of the assessee chargeable to income-tax had escaped assessment, we gave an opportunity to the Revenue to produce the records containing those reasons. All that have been found in the records are reports in Form B made in connection with starting of proceedings under S. 34 (1-A), each report relating to a different assessment year. Items (7) and (8) of this Form relate to brief reasons for starting proceedings and whether the Central Board of Revenue was satisfied that it was a fit case for issue of notice. Against item (7) it is stated "reasons as per separate sheet attached". Against item (8), the Secretary of the Central Board of Revenue signed after writing "Yes. satisfied". The reasons for starting the proceedings given in the separate sheet may be fully reproduced:"For the reasons hereinafter recorded I believe that income, profits and gains earned by the assessee in his personal capacity and in conjunction with others and chargeable to income-tax have escaped assessment and that the amount of such concealed income relating to the Accounting years covering the period beginning on the lst day of September, 1939 and ending on the 31st day of March, 1949, amount to or is likely to amount to Rupees 1,00,000/-. The reason for such belief, inter alia, is as follows:(1) The assessee who is or was at the relevant time a Managing Director in about a dozen limited companies, along with "Oberois" is believed to have made some secret profits which were not offered for assessment.(2) The assessee is believed to have received a sum of Rs. 22 lakhs from "Oberois" and this sum or at least part of which represents income has escaped assessment.Sd./ (A. K. Bhowmik)Income-tax Officer,Dist. II (2), Calcutta".9. It is abundantly clear that the two reasons which have been given for the belief which was formed by the Income-tax Officer hopelessly fail to satisfy the requirements of the statute. In a recent case Chhugamal Rajpal v. S. P. Chaliha 79 ITR 603 = (AIR 1971 SC 730 ) which came up before this Court, a similar situation had arisen and under the directions of the Court the Department produced the records to show that the Income-tax Officer had complied with the conditions laid down in the statute for issuing a notice relating to escapement of Income. There also, the report submitted by the Officer to the Commissioner and the latters orders thereon were produced. In his report, the Income-tax Officer referred to some communications received by him from the Commissioner of Income-tax Bihar and Orissa from which it appeared that certain creditors of the assessee were mere name-lenders and the loan transactions were bogus and, therefore, proper investigation regarding the loans was necessary. It was observed that the Income-tax Officer had not set out any reason for coming to the conclusion that it was a fit case for issuing a notice under Section 148 of the Income Tax Act, 1961. The material that he had before him for issuing notice had not been mentioned. The facts contained in the communications which had been received were only referred to vaguely and all that had been said was that from those communications, it appeared that the alleged creditors were namelenders and the transactions were bogus. It was held that from the report submitted by the Income-tax Officer to the Commissioner it was clear that he could not have had reasons to believe that on account of assessees omission to disclose fully and truly all material facts, income chargeable to tax had escaped assessment.10. In our judgment, the law laid down by this Court in the above case is fully applicable to the facts of the present case. There can be no manner of doubt that the words "reason to believe" suggest that the belief must be that of an honest and reasonable person based upon reasonable grounds and that the Income Tax Officer may act on direct or circumstantial evidence but not on mere suspicion, gossip or rumour. The Income-lax Officer would be acting without jurisdiction if the reason for his belief that the conditions are satisfied does not exist or is not material or relevant to the belief required by the section. The Court can always examine this aspect though the declaration or sufficiency of the reasons for the belief cannot be investigated by the Court.11. There is no material or fact which has been stated in the reasons for starting proceedings in the present case on which any belief could be founded of the nature contemplated by Section 34 (1-A). The so-called reasons are stated to be beliefs thus leading to an obvious self contradiction. We are satisfied that the requirements of Section 34 (1-A) were not satisfied and, therefore, the notices which had been, issued were wholly illegal and invalid. | 1[ds]9. It is abundantly clear that the two reasons which have been given for the belief which was formed by the Income-tax Officer hopelessly fail to satisfy the requirements of the statute. In a recent case Chhugamal Rajpal v. S. P. Chaliha 79 ITR 603 = (AIR 1971 SC 730 ) which came up before this Court, a similar situation had arisen and under the directions of the Court the Department produced the records to show that the Income-tax Officer had complied with the conditions laid down in the statute for issuing a notice relating to escapement of Income. There also, the report submitted by the Officer to the Commissioner and the latters orders thereon were produced. In his report, the Income-tax Officer referred to some communications received by him from the Commissioner of Income-tax Bihar and Orissa from which it appeared that certain creditors of the assessee were mere name-lenders and the loan transactions were bogus and, therefore, proper investigation regarding the loans was necessary. It was observed that the Income-tax Officer had not set out any reason for coming to the conclusion that it was a fit case for issuing a notice under Section 148 ofthe Income Tax Act, 1961. The material that he had before him for issuing notice had not been mentioned. The facts contained in the communications which had been received were only referred to vaguely and all that had been said was that from those communications, it appeared that the alleged creditors were namelenders and the transactions were bogus. It was held that from the report submitted by the Income-tax Officer to the Commissioner it was clear that he could not have had reasons to believe that on account of assessees omission to disclose fully and truly all material facts, income chargeable to tax had escaped assessment.10. In our judgment, the law laid down by this Court in the above case is fully applicable to the facts of the present case. There can be no manner of doubt that the words "reason to believe" suggest that the belief must be that of an honest and reasonable person based upon reasonable grounds and that the Income Tax Officer may act on direct or circumstantial evidence but not on mere suspicion, gossip or rumour. The Income-lax Officer would be acting without jurisdiction if the reason for his belief that the conditions are satisfied does not exist or is not material or relevant to the belief required by the section. The Court can always examine this aspect though the declaration or sufficiency of the reasons for the belief cannot be investigated by the Court.11. There is no material or fact which has been stated in the reasons for starting proceedings in the present case on which any belief could be founded of the nature contemplated by Section 34 (1-A). The so-called reasons are stated to be beliefs thus leading to an obvious self contradiction. We are satisfied that the requirements of Section 34 (1-A) were not satisfied and, therefore, the notices which had been, issued were wholly illegal and invalid. | 1 | 2,640 | 554 | ### 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:
there was an initial lack of jurisdiction.7. Section 34 (1-A) to the extent it is necessary, may be reproduced."34 (1-A). If, in the case of any assessee, the Income-tax Officer has reason to believe-(i) that income, profits or gains chargeable to income-tax have escaped assessment for any year in respect of which the relevant previous year falls. . .. .; and(ii) that the income, profits or gains which have so escaped assessment for any such year or years amount or are likely to amount to one lakh of rupees or more; he may. . .. serve on the assessee. . . .a notice containing. . . ,and may proceed to assess or reassess the income, profits or gains of the assessee . . . :Provided that the Income-tax Officer shall not issue a notice under this sub-section unless he has recorded his reasons for doing so and the Central Board of Revenue is satisfied on such reasons recorded that it is a fit case for the issue of such notice".8. Since nothing had been disclosed which was relevant for the purpose of finding out whether the Income Tax Officer had any reason to believe that the income, profits or gains of the assessee chargeable to income-tax had escaped assessment, we gave an opportunity to the Revenue to produce the records containing those reasons. All that have been found in the records are reports in Form B made in connection with starting of proceedings under S. 34 (1-A), each report relating to a different assessment year. Items (7) and (8) of this Form relate to brief reasons for starting proceedings and whether the Central Board of Revenue was satisfied that it was a fit case for issue of notice. Against item (7) it is stated "reasons as per separate sheet attached". Against item (8), the Secretary of the Central Board of Revenue signed after writing "Yes. satisfied". The reasons for starting the proceedings given in the separate sheet may be fully reproduced:"For the reasons hereinafter recorded I believe that income, profits and gains earned by the assessee in his personal capacity and in conjunction with others and chargeable to income-tax have escaped assessment and that the amount of such concealed income relating to the Accounting years covering the period beginning on the lst day of September, 1939 and ending on the 31st day of March, 1949, amount to or is likely to amount to Rupees 1,00,000/-. The reason for such belief, inter alia, is as follows:(1) The assessee who is or was at the relevant time a Managing Director in about a dozen limited companies, along with "Oberois" is believed to have made some secret profits which were not offered for assessment.(2) The assessee is believed to have received a sum of Rs. 22 lakhs from "Oberois" and this sum or at least part of which represents income has escaped assessment.Sd./ (A. K. Bhowmik)Income-tax Officer,Dist. II (2), Calcutta".9. It is abundantly clear that the two reasons which have been given for the belief which was formed by the Income-tax Officer hopelessly fail to satisfy the requirements of the statute. In a recent case Chhugamal Rajpal v. S. P. Chaliha 79 ITR 603 = (AIR 1971 SC 730 ) which came up before this Court, a similar situation had arisen and under the directions of the Court the Department produced the records to show that the Income-tax Officer had complied with the conditions laid down in the statute for issuing a notice relating to escapement of Income. There also, the report submitted by the Officer to the Commissioner and the latters orders thereon were produced. In his report, the Income-tax Officer referred to some communications received by him from the Commissioner of Income-tax Bihar and Orissa from which it appeared that certain creditors of the assessee were mere name-lenders and the loan transactions were bogus and, therefore, proper investigation regarding the loans was necessary. It was observed that the Income-tax Officer had not set out any reason for coming to the conclusion that it was a fit case for issuing a notice under Section 148 of the Income Tax Act, 1961. The material that he had before him for issuing notice had not been mentioned. The facts contained in the communications which had been received were only referred to vaguely and all that had been said was that from those communications, it appeared that the alleged creditors were namelenders and the transactions were bogus. It was held that from the report submitted by the Income-tax Officer to the Commissioner it was clear that he could not have had reasons to believe that on account of assessees omission to disclose fully and truly all material facts, income chargeable to tax had escaped assessment.10. In our judgment, the law laid down by this Court in the above case is fully applicable to the facts of the present case. There can be no manner of doubt that the words "reason to believe" suggest that the belief must be that of an honest and reasonable person based upon reasonable grounds and that the Income Tax Officer may act on direct or circumstantial evidence but not on mere suspicion, gossip or rumour. The Income-lax Officer would be acting without jurisdiction if the reason for his belief that the conditions are satisfied does not exist or is not material or relevant to the belief required by the section. The Court can always examine this aspect though the declaration or sufficiency of the reasons for the belief cannot be investigated by the Court.11. There is no material or fact which has been stated in the reasons for starting proceedings in the present case on which any belief could be founded of the nature contemplated by Section 34 (1-A). The so-called reasons are stated to be beliefs thus leading to an obvious self contradiction. We are satisfied that the requirements of Section 34 (1-A) were not satisfied and, therefore, the notices which had been, issued were wholly illegal and invalid.
### Response:
1
### Explanation:
9. It is abundantly clear that the two reasons which have been given for the belief which was formed by the Income-tax Officer hopelessly fail to satisfy the requirements of the statute. In a recent case Chhugamal Rajpal v. S. P. Chaliha 79 ITR 603 = (AIR 1971 SC 730 ) which came up before this Court, a similar situation had arisen and under the directions of the Court the Department produced the records to show that the Income-tax Officer had complied with the conditions laid down in the statute for issuing a notice relating to escapement of Income. There also, the report submitted by the Officer to the Commissioner and the latters orders thereon were produced. In his report, the Income-tax Officer referred to some communications received by him from the Commissioner of Income-tax Bihar and Orissa from which it appeared that certain creditors of the assessee were mere name-lenders and the loan transactions were bogus and, therefore, proper investigation regarding the loans was necessary. It was observed that the Income-tax Officer had not set out any reason for coming to the conclusion that it was a fit case for issuing a notice under Section 148 ofthe Income Tax Act, 1961. The material that he had before him for issuing notice had not been mentioned. The facts contained in the communications which had been received were only referred to vaguely and all that had been said was that from those communications, it appeared that the alleged creditors were namelenders and the transactions were bogus. It was held that from the report submitted by the Income-tax Officer to the Commissioner it was clear that he could not have had reasons to believe that on account of assessees omission to disclose fully and truly all material facts, income chargeable to tax had escaped assessment.10. In our judgment, the law laid down by this Court in the above case is fully applicable to the facts of the present case. There can be no manner of doubt that the words "reason to believe" suggest that the belief must be that of an honest and reasonable person based upon reasonable grounds and that the Income Tax Officer may act on direct or circumstantial evidence but not on mere suspicion, gossip or rumour. The Income-lax Officer would be acting without jurisdiction if the reason for his belief that the conditions are satisfied does not exist or is not material or relevant to the belief required by the section. The Court can always examine this aspect though the declaration or sufficiency of the reasons for the belief cannot be investigated by the Court.11. There is no material or fact which has been stated in the reasons for starting proceedings in the present case on which any belief could be founded of the nature contemplated by Section 34 (1-A). The so-called reasons are stated to be beliefs thus leading to an obvious self contradiction. We are satisfied that the requirements of Section 34 (1-A) were not satisfied and, therefore, the notices which had been, issued were wholly illegal and invalid.
|
T. Vijayalakshmi Vs. Town Planning Member | sustained.11. Mr. S.K. Kulkarni, the learned counsel appearing on behalf of the Authority, on the other hand, submitted that as the matter relating to revision of the comprehensive development plan is pending consideration before the State Government, the impugned judgment should not be interfered with. 12. Town Planning Legislations are regulatory in nature. The right to property of a person would include a right to construct a building. Such a right, however, can be restricted by reason of a legislation. In terms of the provisions of the Karnataka Town and Country Planning Act, a comprehensive development plan was prepared. It indisputably is still in force. Whether the amendments to the said comprehensive development plan as proposed by the Authority would ultimately be accepted by the State or not is uncertain. It is yet to apply its mind. Amendments to a development plan must conform to the provisions of the Act. As noticed hereinbefore, the State has called for objection from the citizens. Ecological balance no doubt is required to be maintained and the courts while interpreting a statute should bestow serious consideration in this behalf, but ecological aspects, it is trite, is ordinarily a part of the town planning legislation. If in the legislation itself or in the statute governing the field, ecological aspects have not been taken into consideration keeping in view the future need, the State and the Authority must take the blame therefor. We must assume that these aspects of the matter were taken into consideration by the Authority and the State. But the rights of the parties cannot be intermeddled so long as an appropriate amendment in the legislation is not brought into force.13. Nobody questioned the validity of the existing law. The High Court has not held that the existing laws are ultra vires. It merely proceeded on the assumption that the law which may be brought into the state book would be more eco-friendly.14. The law in this behalf is explicit. Right of a person to construct residential houses in the residential area is a valuable right. The said right can only be regulated in terms of a regulatory statute but unless there exists a clear provision the same cannot be taken away. It is also a trite law that the building plans are required to be dealt with in terms of the existing law. Determination of such a question cannot be postponed far less taken away. Doctrine of Legitimate Expectation in a case of this nature would have a role to play. 15. In Director of Public Works and another vs. HO PO Sang and others [(1961) AC 901], interpreting the provisions of the Landlord and Tenant Ordinance, 1947, it was held : "In summary, the application of the second appellant for a rebuilding certificate conferred no right on him which was preserved after the repeal of sections 3A-E, but merely conferred hope or expectation that the Governor in Council would exercise his executive or ministerial discretion in his favour and the first appellant would thereafter issue a certificate. Similarly, the issue by the first appellant of notice of intention to grant a rebuilding certificate conferred no right on the second appellant which was preserved after the repeal, but merely instituted a procedure whereby the matter could be referred to the Governor in Council. The repeal disentitled the first appellant from thereafter issuing any rebuilding certificate where the matter had been referred by petition to the Governor in Council but had not been determined by the Governor." 16. The question came up directly for consideration in Howrah Municipal Corporation and others vs. Ganges Rope Co. Ltd. and others [(2004) 1 SCC 663] , wherein it was held : "...The context in which the respondent Company claims a vested right for sanction and which has been accepted by the Division Bench of the High Court, is not a right in relation to "ownership or possession of any property" for which the expression "vest" is generally used. What we can understand from the claim of a "vested right" set up by the respondent Company is that on the basis of the Building Rules, as applicable to their case on the date of making an application for sanction and the fixed period allotted by the Court for its consideration, it had a "legitimate" or "settled expectation" to obtain the sanction. In our considered opinion, such "settled expectation", if any, did not create any vested right to obtain sanction. True it is, that the respondent Company which can have no control over the manner of processing of application for sanction by the Corporation cannot be blamed for delay but during pendency of its application for sanction, if the State Government, in exercise of its rule-making power, amended the Building Rules and imposed restrictions on the heights of buildings on G.T. Road and other wards, such "settled expectation" has been rendered impossible of fulfilment due to change in law. The claim based on the alleged "vested right" or "settled expectation" cannot be set up against statutory provisions which were brought into force by the State Government by amending the Building Rules and not by the Corporation against whom such "vested right" or "settled expectation" is being sought to be enforced. The "vested right" or "settled expectation" has been nullified not only by the Corporation but also by the State by amending the Building Rules. Besides this, such a "settled expectation" or the so-called "vested right" cannot be countenanced against public interest and convenience which are sought to be served by amendment of the Building Rules and the resolution of the Corporation issued thereupon." 17. It is, thus, now well-settled law that an application for grant of permission for construction of a building is required to be decided in accordance with law applicable on the day on which such permission is granted. However, a statutory authority must exercise its jurisdiction within a reasonable time. [See Kuldeep Singh vs. Govt. of NCT of Delhi - 2006 (6) SCALE 588 ]. | 1[ds]12. Town Planning Legislations are regulatory in nature. The right to property of a person would include a right to construct a building. Such a right, however, can be restricted by reason of a legislation. In terms of the provisions of the Karnataka Town and Country Planning Act, a comprehensive development plan was prepared. It indisputably is still in force. Whether the amendments to the said comprehensive development plan as proposed by the Authority would ultimately be accepted by the State or not is uncertain. It is yet to apply its mind. Amendments to a development plan must conform to the provisions of the Act. As noticed hereinbefore, the State has called for objection from the citizens. Ecological balance no doubt is required to be maintained and the courts while interpreting a statute should bestow serious consideration in this behalf, but ecological aspects, it is trite, is ordinarily a part of the town planning legislation. If in the legislation itself or in the statute governing the field, ecological aspects have not been taken into consideration keeping in view the future need, the State and the Authority must take the blame therefor. We must assume that these aspects of the matter were taken into consideration by the Authority and the State. But the rights of the parties cannot be intermeddled so long as an appropriate amendment in the legislation is not brought into force.13. Nobody questioned the validity of the existing law. The High Court has not held that the existing laws are ultra vires. It merely proceeded on the assumption that the law which may be brought into the state book would be more eco-friendly.14. The law in this behalf is explicit. Right of a person to construct residential houses in the residential area is a valuable right. The said right can only be regulated in terms of a regulatory statute but unless there exists a clear provision the same cannot be taken away. It is also a trite law that the building plans are required to be dealt with in terms of the existing law. Determination of such a question cannot be postponed far less taken away. Doctrine of Legitimate Expectation in a case of this nature would have a role to play.It is, thus, now well-settled law that an application for grant of permission for construction of a building is required to be decided in accordance with law applicable on the day on which such permission is granted. However, a statutory authority must exercise its jurisdiction within a reasonable time. [See Kuldeep Singh vs. Govt. of NCT of Delhi - 2006 (6) SCALE 588 ]. | 1 | 1,985 | 485 | ### 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:
sustained.11. Mr. S.K. Kulkarni, the learned counsel appearing on behalf of the Authority, on the other hand, submitted that as the matter relating to revision of the comprehensive development plan is pending consideration before the State Government, the impugned judgment should not be interfered with. 12. Town Planning Legislations are regulatory in nature. The right to property of a person would include a right to construct a building. Such a right, however, can be restricted by reason of a legislation. In terms of the provisions of the Karnataka Town and Country Planning Act, a comprehensive development plan was prepared. It indisputably is still in force. Whether the amendments to the said comprehensive development plan as proposed by the Authority would ultimately be accepted by the State or not is uncertain. It is yet to apply its mind. Amendments to a development plan must conform to the provisions of the Act. As noticed hereinbefore, the State has called for objection from the citizens. Ecological balance no doubt is required to be maintained and the courts while interpreting a statute should bestow serious consideration in this behalf, but ecological aspects, it is trite, is ordinarily a part of the town planning legislation. If in the legislation itself or in the statute governing the field, ecological aspects have not been taken into consideration keeping in view the future need, the State and the Authority must take the blame therefor. We must assume that these aspects of the matter were taken into consideration by the Authority and the State. But the rights of the parties cannot be intermeddled so long as an appropriate amendment in the legislation is not brought into force.13. Nobody questioned the validity of the existing law. The High Court has not held that the existing laws are ultra vires. It merely proceeded on the assumption that the law which may be brought into the state book would be more eco-friendly.14. The law in this behalf is explicit. Right of a person to construct residential houses in the residential area is a valuable right. The said right can only be regulated in terms of a regulatory statute but unless there exists a clear provision the same cannot be taken away. It is also a trite law that the building plans are required to be dealt with in terms of the existing law. Determination of such a question cannot be postponed far less taken away. Doctrine of Legitimate Expectation in a case of this nature would have a role to play. 15. In Director of Public Works and another vs. HO PO Sang and others [(1961) AC 901], interpreting the provisions of the Landlord and Tenant Ordinance, 1947, it was held : "In summary, the application of the second appellant for a rebuilding certificate conferred no right on him which was preserved after the repeal of sections 3A-E, but merely conferred hope or expectation that the Governor in Council would exercise his executive or ministerial discretion in his favour and the first appellant would thereafter issue a certificate. Similarly, the issue by the first appellant of notice of intention to grant a rebuilding certificate conferred no right on the second appellant which was preserved after the repeal, but merely instituted a procedure whereby the matter could be referred to the Governor in Council. The repeal disentitled the first appellant from thereafter issuing any rebuilding certificate where the matter had been referred by petition to the Governor in Council but had not been determined by the Governor." 16. The question came up directly for consideration in Howrah Municipal Corporation and others vs. Ganges Rope Co. Ltd. and others [(2004) 1 SCC 663] , wherein it was held : "...The context in which the respondent Company claims a vested right for sanction and which has been accepted by the Division Bench of the High Court, is not a right in relation to "ownership or possession of any property" for which the expression "vest" is generally used. What we can understand from the claim of a "vested right" set up by the respondent Company is that on the basis of the Building Rules, as applicable to their case on the date of making an application for sanction and the fixed period allotted by the Court for its consideration, it had a "legitimate" or "settled expectation" to obtain the sanction. In our considered opinion, such "settled expectation", if any, did not create any vested right to obtain sanction. True it is, that the respondent Company which can have no control over the manner of processing of application for sanction by the Corporation cannot be blamed for delay but during pendency of its application for sanction, if the State Government, in exercise of its rule-making power, amended the Building Rules and imposed restrictions on the heights of buildings on G.T. Road and other wards, such "settled expectation" has been rendered impossible of fulfilment due to change in law. The claim based on the alleged "vested right" or "settled expectation" cannot be set up against statutory provisions which were brought into force by the State Government by amending the Building Rules and not by the Corporation against whom such "vested right" or "settled expectation" is being sought to be enforced. The "vested right" or "settled expectation" has been nullified not only by the Corporation but also by the State by amending the Building Rules. Besides this, such a "settled expectation" or the so-called "vested right" cannot be countenanced against public interest and convenience which are sought to be served by amendment of the Building Rules and the resolution of the Corporation issued thereupon." 17. It is, thus, now well-settled law that an application for grant of permission for construction of a building is required to be decided in accordance with law applicable on the day on which such permission is granted. However, a statutory authority must exercise its jurisdiction within a reasonable time. [See Kuldeep Singh vs. Govt. of NCT of Delhi - 2006 (6) SCALE 588 ].
### Response:
1
### Explanation:
12. Town Planning Legislations are regulatory in nature. The right to property of a person would include a right to construct a building. Such a right, however, can be restricted by reason of a legislation. In terms of the provisions of the Karnataka Town and Country Planning Act, a comprehensive development plan was prepared. It indisputably is still in force. Whether the amendments to the said comprehensive development plan as proposed by the Authority would ultimately be accepted by the State or not is uncertain. It is yet to apply its mind. Amendments to a development plan must conform to the provisions of the Act. As noticed hereinbefore, the State has called for objection from the citizens. Ecological balance no doubt is required to be maintained and the courts while interpreting a statute should bestow serious consideration in this behalf, but ecological aspects, it is trite, is ordinarily a part of the town planning legislation. If in the legislation itself or in the statute governing the field, ecological aspects have not been taken into consideration keeping in view the future need, the State and the Authority must take the blame therefor. We must assume that these aspects of the matter were taken into consideration by the Authority and the State. But the rights of the parties cannot be intermeddled so long as an appropriate amendment in the legislation is not brought into force.13. Nobody questioned the validity of the existing law. The High Court has not held that the existing laws are ultra vires. It merely proceeded on the assumption that the law which may be brought into the state book would be more eco-friendly.14. The law in this behalf is explicit. Right of a person to construct residential houses in the residential area is a valuable right. The said right can only be regulated in terms of a regulatory statute but unless there exists a clear provision the same cannot be taken away. It is also a trite law that the building plans are required to be dealt with in terms of the existing law. Determination of such a question cannot be postponed far less taken away. Doctrine of Legitimate Expectation in a case of this nature would have a role to play.It is, thus, now well-settled law that an application for grant of permission for construction of a building is required to be decided in accordance with law applicable on the day on which such permission is granted. However, a statutory authority must exercise its jurisdiction within a reasonable time. [See Kuldeep Singh vs. Govt. of NCT of Delhi - 2006 (6) SCALE 588 ].
|
State Of Bihar Vs. Ramesh Prasad Verma (Dead)Thr. Lrs | payable in respect of any minor Mineral w.e.f. the date of the publication of the notification in the official gazette. Though it has been contended on behalf of the respondents that the mandate contained in sub-rule 5 of Rule 26 authorizing the State Government to enhance or reduce the rate of rents/royalties, has to be construed to make such enhancement or reduction effective essentially on and from the date of the publication of the notification in the Official Gazette to that effect, we are unable to subscribe to this plea vis-a-vis the Notification dated 26.12.2001 in its operation. In our estimate, having regard to the relevant provisions of the Rules and, in particular the two Notifications in hand and most importantly the footnote to the one dated 24.03.2001, the Notification dated 26.12.2001 is only clarificatory in nature, inasmuch as it declares only the areas from which, if the minerals concerned are extracted would draw the rate of royalty already fixed by the Notification dated 24.03.2001, payable on and from 01.04.2001. 17. No other interpretation would accord with the legislative intendment contained in Rule 26 as well as the objectives of the two Notifications. 18. All the decisions cited at the Bar are to the effect that a delegated legislation cannot traverse beyond the contours of the authority endowed by the parent statute and unless authorized by it, is not empowered to make any law or provision with retrospective effect, impairing the already vested rights of those likely to be adversely affected thereby. In our mind, these pronouncements, in the singular facts of the case are of no avail to the respondents having regard in particular to the clarificatory nature of the Notification dated 26.12.2001. 19. In Commissioner of Income Tax-I, Ahmedabad vs. Gold Coin Health Food Pvt. Ltd. (2008) 9 SCC 622 , a three-Judge Bench of this Court, while dwelling on the sweep of a clarificatory or declaratory legal provision, relied on the following extract from the celebrated treatise Principles of Statutory Interpretation, 11th Edition 2008 by Justice G.P. Singh: The presumption against retrospective operation is not applicable to declaratory statutes. As stated in Craies and approved by the Supreme Court: For modern purposes a declaratory Act may be defined as an Act to remove doubts existing as to the common law, or the meaning or effect of any Statute. Such acts are usually held to be retrospective......... ….........An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. It is well settled that if a statute is curative or merely declaratory of the previous law, retrospective operation is generally intended. The language `shall be deemed always to have meant or `shall be deemed never to have included is declaratory, and is in plain terms retrospective. In the absence of clear words indicating that the amending Act is declaratory, it would not be so construed when the amended provision was clear and unambiguous. An amending Act may be purely clarificatory to clear a meaning of a provision of the principal Act which was already implicit. A clarificatory amendment of this nature will have retrospective effect and, therefore, if the principal Act was existing law when the constitution came into force, the amending Act also will be part of the existing law. 20. The following quote contained in Zile Singh vs. State of Haryana & Ors. AIR 2004 SC 5100 , was also noted with approval: 14. The presumption against retrospective operation is not applicable to declaratory statutes.... In determining, therefore, the nature of the Act, regard must be had to the substance rather than to the form. If a new Act is to explain an earlier Act, it would be without object unless construed retrospectively. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. It is well settled that if a statute is curative or merely declaratory of the previous law, retrospective operation is generally intended.... An amending Act may be purely declaratory to clear a meaning of a provision of the principal Act which was already implicit. A clarificatory amendment of this nature will have retrospective effect. 21. The proposition has been so well laid that we do not wish to burden the present rendition by referring to other rulings in the same vein. Suffice it to state that any legislation or instrument having the force of law, if clarificatory, declaratory or explanatory in nature and purport, in order to supply an obvious omission or to clear up doubts qua any prior law, retrospective operation thereof is generally intended. Applying this test, in absence of any indication to the contrary, either in the parent Act or the Rules or the Notifications involved, we are thus of the unhesitant opinion that on a conjoint reading of Rule 26 and the two Notifications, the enhanced rate of royalty at Rs.100/- per cubic meter for boulder, gravel and shingle, which are used or are capable of being used for making chips would be realizable w.e.f. 01.04.2001 and axiomatically thus, the respondents are liable to discharge the demand, therefor, as raised in terms thereof. The respondents were fully aware of the amended rate of Rs. 100/- per cubic metre for the minerals extracted by them and thus the reasoning of the High Court that they might not have passed on the burden to their purchasers is without any factual basis and being clearly speculative is untenable. The High Court, in our view, had clearly erred in interpreting the relevant legal provisions and the Notification dated 26.12.2001 in particular in holding that the enhanced rates, as fixed by the Notification dated 24.03.2001, would be payable for the minerals involved, as extracted from the two areas, mentioned in the Notification dated 26.12.2001 on and from that date. The determination made by the High Court is thus indefensible and consequently, the impugned decision is hereby set aside. | 1[ds]16. In Re Rule 26, it is apparent therefrom that when a lease is granted or renewed, amongst others royalty would be charged at the rate specified in Schedule II and that the State Government may, by notification in the official gazette, amend the First and Second Schedules so as to enhance or reduce the rate at which rents/ royalty would be payable in respect of any minor Mineral w.e.f. the date of the publication of the notification in the official gazette. Though it has been contended on behalf of the respondents that the mandate contained in sub-rule 5 of Rule 26 authorizing the State Government to enhance or reduce the rate of rents/royalties, has to be construed to make such enhancement or reduction effective essentially on and from the date of the publication of the notification in the Official Gazette to that effect, we are unable to subscribe to this plea vis-a-vis the Notification dated 26.12.2001 in its operation. In our estimate, having regard to the relevant provisions of the Rules and, in particular the two Notifications in hand and most importantly the footnote to the one dated 24.03.2001, the Notification dated 26.12.2001 is only clarificatory in nature, inasmuch as it declares only the areas from which, if the minerals concerned are extracted would draw the rate of royalty already fixed by the Notification dated 24.03.2001, payable on and from 01.04.200118. All the decisions cited at the Bar are to the effect that a delegated legislation cannot traverse beyond the contours of the authority endowed by the parent statute and unless authorized by it, is not empowered to make any law or provision with retrospective effect, impairing the already vested rights of those likely to be adversely affected thereby. In our mind, these pronouncements, in the singular facts of the case are of no avail to the respondents having regard in particular to the clarificatory nature of the Notification dated 26.12.200120. The following quote contained in Zile Singh vs. State of Haryana & Ors. AIR 2004 SC 5100 , was also noted with approval:14. The presumption against retrospective operation is not applicable to declaratory statutes.... In determining, therefore, the nature of the Act, regard must be had to the substance rather than to the form. If a new Act is to explain an earlier Act, it would be without object unless construed retrospectively. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. It is well settled that if a statute is curative or merely declaratory of the previous law, retrospective operation is generally intended.... An amending Act may be purely declaratory to clear a meaning of a provision of the principal Act which was already implicit. A clarificatory amendment of this nature will have retrospective effect21. The proposition has been so well laid that we do not wish to burden the present rendition by referring to other rulings in the same vein. Suffice it to state that any legislation or instrument having the force of law, if clarificatory, declaratory or explanatory in nature and purport, in order to supply an obvious omission or to clear up doubts qua any prior law, retrospective operation thereof is generally intended. Applying this test, in absence of any indication to the contrary, either in the parent Act or the Rules or the Notifications involved, we are thus of the unhesitant opinion that on a conjoint reading of Rule 26 and the two Notifications, the enhanced rate of royalty at Rs.100/- per cubic meter for boulder, gravel and shingle, which are used or are capable of being used for making chips would be realizable w.e.f. 01.04.2001 and axiomatically thus, the respondents are liable to discharge the demand, therefor, as raised in terms thereof. The respondents were fully aware of the amended rate of Rs. 100/- per cubic metre for the minerals extracted by them and thus the reasoning of the High Court that they might not have passed on the burden to their purchasers is without any factual basis and being clearly speculative is untenable. The High Court, in our view, had clearly erred in interpreting the relevant legal provisions and the Notification dated 26.12.2001 in particular in holding that the enhanced rates, as fixed by the Notification dated 24.03.2001, would be payable for the minerals involved, as extracted from the two areas, mentioned in the Notification dated 26.12.2001 on and from that date. The determination made by the High Court is thus indefensible and consequently, the impugned decision is hereby set aside. | 1 | 3,339 | 834 | ### Instruction:
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payable in respect of any minor Mineral w.e.f. the date of the publication of the notification in the official gazette. Though it has been contended on behalf of the respondents that the mandate contained in sub-rule 5 of Rule 26 authorizing the State Government to enhance or reduce the rate of rents/royalties, has to be construed to make such enhancement or reduction effective essentially on and from the date of the publication of the notification in the Official Gazette to that effect, we are unable to subscribe to this plea vis-a-vis the Notification dated 26.12.2001 in its operation. In our estimate, having regard to the relevant provisions of the Rules and, in particular the two Notifications in hand and most importantly the footnote to the one dated 24.03.2001, the Notification dated 26.12.2001 is only clarificatory in nature, inasmuch as it declares only the areas from which, if the minerals concerned are extracted would draw the rate of royalty already fixed by the Notification dated 24.03.2001, payable on and from 01.04.2001. 17. No other interpretation would accord with the legislative intendment contained in Rule 26 as well as the objectives of the two Notifications. 18. All the decisions cited at the Bar are to the effect that a delegated legislation cannot traverse beyond the contours of the authority endowed by the parent statute and unless authorized by it, is not empowered to make any law or provision with retrospective effect, impairing the already vested rights of those likely to be adversely affected thereby. In our mind, these pronouncements, in the singular facts of the case are of no avail to the respondents having regard in particular to the clarificatory nature of the Notification dated 26.12.2001. 19. In Commissioner of Income Tax-I, Ahmedabad vs. Gold Coin Health Food Pvt. Ltd. (2008) 9 SCC 622 , a three-Judge Bench of this Court, while dwelling on the sweep of a clarificatory or declaratory legal provision, relied on the following extract from the celebrated treatise Principles of Statutory Interpretation, 11th Edition 2008 by Justice G.P. Singh: The presumption against retrospective operation is not applicable to declaratory statutes. As stated in Craies and approved by the Supreme Court: For modern purposes a declaratory Act may be defined as an Act to remove doubts existing as to the common law, or the meaning or effect of any Statute. Such acts are usually held to be retrospective......... ….........An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. It is well settled that if a statute is curative or merely declaratory of the previous law, retrospective operation is generally intended. The language `shall be deemed always to have meant or `shall be deemed never to have included is declaratory, and is in plain terms retrospective. In the absence of clear words indicating that the amending Act is declaratory, it would not be so construed when the amended provision was clear and unambiguous. An amending Act may be purely clarificatory to clear a meaning of a provision of the principal Act which was already implicit. A clarificatory amendment of this nature will have retrospective effect and, therefore, if the principal Act was existing law when the constitution came into force, the amending Act also will be part of the existing law. 20. The following quote contained in Zile Singh vs. State of Haryana & Ors. AIR 2004 SC 5100 , was also noted with approval: 14. The presumption against retrospective operation is not applicable to declaratory statutes.... In determining, therefore, the nature of the Act, regard must be had to the substance rather than to the form. If a new Act is to explain an earlier Act, it would be without object unless construed retrospectively. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. It is well settled that if a statute is curative or merely declaratory of the previous law, retrospective operation is generally intended.... An amending Act may be purely declaratory to clear a meaning of a provision of the principal Act which was already implicit. A clarificatory amendment of this nature will have retrospective effect. 21. The proposition has been so well laid that we do not wish to burden the present rendition by referring to other rulings in the same vein. Suffice it to state that any legislation or instrument having the force of law, if clarificatory, declaratory or explanatory in nature and purport, in order to supply an obvious omission or to clear up doubts qua any prior law, retrospective operation thereof is generally intended. Applying this test, in absence of any indication to the contrary, either in the parent Act or the Rules or the Notifications involved, we are thus of the unhesitant opinion that on a conjoint reading of Rule 26 and the two Notifications, the enhanced rate of royalty at Rs.100/- per cubic meter for boulder, gravel and shingle, which are used or are capable of being used for making chips would be realizable w.e.f. 01.04.2001 and axiomatically thus, the respondents are liable to discharge the demand, therefor, as raised in terms thereof. The respondents were fully aware of the amended rate of Rs. 100/- per cubic metre for the minerals extracted by them and thus the reasoning of the High Court that they might not have passed on the burden to their purchasers is without any factual basis and being clearly speculative is untenable. The High Court, in our view, had clearly erred in interpreting the relevant legal provisions and the Notification dated 26.12.2001 in particular in holding that the enhanced rates, as fixed by the Notification dated 24.03.2001, would be payable for the minerals involved, as extracted from the two areas, mentioned in the Notification dated 26.12.2001 on and from that date. The determination made by the High Court is thus indefensible and consequently, the impugned decision is hereby set aside.
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### Explanation:
16. In Re Rule 26, it is apparent therefrom that when a lease is granted or renewed, amongst others royalty would be charged at the rate specified in Schedule II and that the State Government may, by notification in the official gazette, amend the First and Second Schedules so as to enhance or reduce the rate at which rents/ royalty would be payable in respect of any minor Mineral w.e.f. the date of the publication of the notification in the official gazette. Though it has been contended on behalf of the respondents that the mandate contained in sub-rule 5 of Rule 26 authorizing the State Government to enhance or reduce the rate of rents/royalties, has to be construed to make such enhancement or reduction effective essentially on and from the date of the publication of the notification in the Official Gazette to that effect, we are unable to subscribe to this plea vis-a-vis the Notification dated 26.12.2001 in its operation. In our estimate, having regard to the relevant provisions of the Rules and, in particular the two Notifications in hand and most importantly the footnote to the one dated 24.03.2001, the Notification dated 26.12.2001 is only clarificatory in nature, inasmuch as it declares only the areas from which, if the minerals concerned are extracted would draw the rate of royalty already fixed by the Notification dated 24.03.2001, payable on and from 01.04.200118. All the decisions cited at the Bar are to the effect that a delegated legislation cannot traverse beyond the contours of the authority endowed by the parent statute and unless authorized by it, is not empowered to make any law or provision with retrospective effect, impairing the already vested rights of those likely to be adversely affected thereby. In our mind, these pronouncements, in the singular facts of the case are of no avail to the respondents having regard in particular to the clarificatory nature of the Notification dated 26.12.200120. The following quote contained in Zile Singh vs. State of Haryana & Ors. AIR 2004 SC 5100 , was also noted with approval:14. The presumption against retrospective operation is not applicable to declaratory statutes.... In determining, therefore, the nature of the Act, regard must be had to the substance rather than to the form. If a new Act is to explain an earlier Act, it would be without object unless construed retrospectively. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. It is well settled that if a statute is curative or merely declaratory of the previous law, retrospective operation is generally intended.... An amending Act may be purely declaratory to clear a meaning of a provision of the principal Act which was already implicit. A clarificatory amendment of this nature will have retrospective effect21. The proposition has been so well laid that we do not wish to burden the present rendition by referring to other rulings in the same vein. Suffice it to state that any legislation or instrument having the force of law, if clarificatory, declaratory or explanatory in nature and purport, in order to supply an obvious omission or to clear up doubts qua any prior law, retrospective operation thereof is generally intended. Applying this test, in absence of any indication to the contrary, either in the parent Act or the Rules or the Notifications involved, we are thus of the unhesitant opinion that on a conjoint reading of Rule 26 and the two Notifications, the enhanced rate of royalty at Rs.100/- per cubic meter for boulder, gravel and shingle, which are used or are capable of being used for making chips would be realizable w.e.f. 01.04.2001 and axiomatically thus, the respondents are liable to discharge the demand, therefor, as raised in terms thereof. The respondents were fully aware of the amended rate of Rs. 100/- per cubic metre for the minerals extracted by them and thus the reasoning of the High Court that they might not have passed on the burden to their purchasers is without any factual basis and being clearly speculative is untenable. The High Court, in our view, had clearly erred in interpreting the relevant legal provisions and the Notification dated 26.12.2001 in particular in holding that the enhanced rates, as fixed by the Notification dated 24.03.2001, would be payable for the minerals involved, as extracted from the two areas, mentioned in the Notification dated 26.12.2001 on and from that date. The determination made by the High Court is thus indefensible and consequently, the impugned decision is hereby set aside.
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Kshirode Behari Chakravarty Vs. Union of India | SHAH, J. 1. In a departmental enquiry the appellant was served with a charge-sheet on December 31, 1952, by the Collector of Central Excise, Shillong. There were two heads of charges - (1) that "in September 1950 the appellant gave six copies of Appendix II forms to Chandi Prasad Agarwala knowing him to be a smuggler and wrote out the particulars of the consignments and the names of the consignors knowing that such goods are not permissible to be transported from India through Pakistan and thereby facilitated the smuggling of coriander seeds from Pakistan to India treating them as in transit consignments from Sutarkandi to Calcutta", (2) that the appellant "allowed certain Appendix II applications handed over by him to Chandi Prasad Agarwalla to be impressed with the Official Rubber Stamp of Sutarkandi Land Customs Station and thereby facilitated the consignments to be treated as in transit consignments from Sutarkandi to Calcutta although no such consignments passed through Sutarkandi Land Customs Station to Calcutta." The appellant submitted his reply to those charges. It appears that at some stage he wanted to examine witnesses in defence and to tender some documents, but ultimately on May 14, 1953, he informed in a written communication under his signature to the enquiry officer that he did not want to tender any records in connection with the charges framed against him and that he did not desire to examine any witnesses in his defence as requested by him by his letter, dated February 16, 1953. He also stated in answer to the question put to him by the enquiry officer that he had nothing more to say beside what was stated by him and requested that before passing orders "consideration should be given to his service in the military department". 2. The enquiry officer reported to the Collector of Customs that he was satisfied that the appellant was guilty of the charges raised against him and that the offences committed were serious and the only punishment that the appellant deserved was one of dismissal. The Collector of Customs then served a notice under Article 311(2) of the Constitution upon the appellant requiring him to show cause why he should not be dismissed from service. The appellant then submitted a detailed statement on the merits of the charges against him but he did not contend that he was prevented from tendering any documentary evidence or examining any witnesses. The Collector of Customs considered the representation and passed an order on January 15, 1954, dismissing the appellant from service. An appeal filed by the appellant against the order of dismissal to the Central Board of Revenue was dismissed. The papers relating to the appeal are not before this Court. We are unable to ascertain what representations were made by the appellant in that appeal. 3. The appellant moved a petition before the High Court of Assam challenging the order of dismissal but that petition was summarily dismissed. The appellant then filed a suit in the Civil Court for a decree declaring that his dismissal from service was "illegal, ultra vires, wrongful and unjust" and for an order reinstating him in service and further declaring that he was entitled to receive arrears of pay and other emoluments due to him from the date of suspension. The Trial Court decreed the suit holding that the enquiry held against the appellant was not fair in that the appellant was not supplied the documents of which he had asked for inspection. The decree passed by the Trial Court was reserved by the High Court and the appellant’s suit was dismissed. The appellant has appealed to the Court with certificate. 4. Under Article 311(2) of the Constitution the appellant was, before he was dismissed from service, entitled to be informed of the charges against him, and of being given a reasonable opportunity of being heard in respect of those charges. The appellant was informed of the charges and opportunity of being heard was given to him. There is no substance in his plea that he was not given an opportunity of tendering his evidence, and examining witnesses in his defence. The appellant expressly stated before enquiry officer that he did hot desire to examine any witnesses or tender documentary evidence. He did not contend before the Collector of Customs that the proceeding before the enquiry officer was unfair or that the Collector of Customs should give an opportunity to him to lead evidence. The enquiry under Article 311 is a domestic enquiry, and the Court is not concerned with the question whether on the evidence before the officer or authority passing the order against the civil servant, there was sufficient evidence to justify the order. The guarantee under Article 311 is of the regularity of the enquiry. If the enquiry is not vitiated on the ground of any procedural irregularity the Court is not concerned to decide whether the evidence justified the order. Our attention was invited to certain statements made by the enquiry officer who was examined as a witness on behalf of the Union of India but we do not think that there is anything which would justify us in holding that the enquiry held by the enquiry officer was vitiated. | 0[ds]4. Under Article 311(2) of the Constitution the appellant was, before he was dismissed from service, entitled to be informed of the charges against him, and of being given a reasonable opportunity of being heard in respect of those charges. The appellant was informed of the charges and opportunity of being heard was given to him. There is no substance in his plea that he was not given an opportunity of tendering his evidence, and examining witnesses in his defence. The appellant expressly stated before enquiry officer that he did hot desire to examine any witnesses or tender documentary evidence. He did not contend before the Collector of Customs that the proceeding before the enquiry officer was unfair or that the Collector of Customs should give an opportunity to him to lead evidence. The enquiry under Article 311 is a domestic enquiry, and the Court is not concerned with the question whether on the evidence before the officer or authority passing the order against the civil servant, there was sufficient evidence to justify the order. The guarantee under Article 311 is of the regularity of the enquiry. If the enquiry is not vitiated on the ground of any procedural irregularity the Court is not concerned to decide whether the evidence justified the order. Our attention was invited to certain statements made by the enquiry officer who was examined as a witness on behalf of the Union of India but we do not think that there is anything which would justify us in holding that the enquiry held by the enquiry officer was vitiated. | 0 | 940 | 286 | ### Instruction:
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SHAH, J. 1. In a departmental enquiry the appellant was served with a charge-sheet on December 31, 1952, by the Collector of Central Excise, Shillong. There were two heads of charges - (1) that "in September 1950 the appellant gave six copies of Appendix II forms to Chandi Prasad Agarwala knowing him to be a smuggler and wrote out the particulars of the consignments and the names of the consignors knowing that such goods are not permissible to be transported from India through Pakistan and thereby facilitated the smuggling of coriander seeds from Pakistan to India treating them as in transit consignments from Sutarkandi to Calcutta", (2) that the appellant "allowed certain Appendix II applications handed over by him to Chandi Prasad Agarwalla to be impressed with the Official Rubber Stamp of Sutarkandi Land Customs Station and thereby facilitated the consignments to be treated as in transit consignments from Sutarkandi to Calcutta although no such consignments passed through Sutarkandi Land Customs Station to Calcutta." The appellant submitted his reply to those charges. It appears that at some stage he wanted to examine witnesses in defence and to tender some documents, but ultimately on May 14, 1953, he informed in a written communication under his signature to the enquiry officer that he did not want to tender any records in connection with the charges framed against him and that he did not desire to examine any witnesses in his defence as requested by him by his letter, dated February 16, 1953. He also stated in answer to the question put to him by the enquiry officer that he had nothing more to say beside what was stated by him and requested that before passing orders "consideration should be given to his service in the military department". 2. The enquiry officer reported to the Collector of Customs that he was satisfied that the appellant was guilty of the charges raised against him and that the offences committed were serious and the only punishment that the appellant deserved was one of dismissal. The Collector of Customs then served a notice under Article 311(2) of the Constitution upon the appellant requiring him to show cause why he should not be dismissed from service. The appellant then submitted a detailed statement on the merits of the charges against him but he did not contend that he was prevented from tendering any documentary evidence or examining any witnesses. The Collector of Customs considered the representation and passed an order on January 15, 1954, dismissing the appellant from service. An appeal filed by the appellant against the order of dismissal to the Central Board of Revenue was dismissed. The papers relating to the appeal are not before this Court. We are unable to ascertain what representations were made by the appellant in that appeal. 3. The appellant moved a petition before the High Court of Assam challenging the order of dismissal but that petition was summarily dismissed. The appellant then filed a suit in the Civil Court for a decree declaring that his dismissal from service was "illegal, ultra vires, wrongful and unjust" and for an order reinstating him in service and further declaring that he was entitled to receive arrears of pay and other emoluments due to him from the date of suspension. The Trial Court decreed the suit holding that the enquiry held against the appellant was not fair in that the appellant was not supplied the documents of which he had asked for inspection. The decree passed by the Trial Court was reserved by the High Court and the appellant’s suit was dismissed. The appellant has appealed to the Court with certificate. 4. Under Article 311(2) of the Constitution the appellant was, before he was dismissed from service, entitled to be informed of the charges against him, and of being given a reasonable opportunity of being heard in respect of those charges. The appellant was informed of the charges and opportunity of being heard was given to him. There is no substance in his plea that he was not given an opportunity of tendering his evidence, and examining witnesses in his defence. The appellant expressly stated before enquiry officer that he did hot desire to examine any witnesses or tender documentary evidence. He did not contend before the Collector of Customs that the proceeding before the enquiry officer was unfair or that the Collector of Customs should give an opportunity to him to lead evidence. The enquiry under Article 311 is a domestic enquiry, and the Court is not concerned with the question whether on the evidence before the officer or authority passing the order against the civil servant, there was sufficient evidence to justify the order. The guarantee under Article 311 is of the regularity of the enquiry. If the enquiry is not vitiated on the ground of any procedural irregularity the Court is not concerned to decide whether the evidence justified the order. Our attention was invited to certain statements made by the enquiry officer who was examined as a witness on behalf of the Union of India but we do not think that there is anything which would justify us in holding that the enquiry held by the enquiry officer was vitiated.
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0
### Explanation:
4. Under Article 311(2) of the Constitution the appellant was, before he was dismissed from service, entitled to be informed of the charges against him, and of being given a reasonable opportunity of being heard in respect of those charges. The appellant was informed of the charges and opportunity of being heard was given to him. There is no substance in his plea that he was not given an opportunity of tendering his evidence, and examining witnesses in his defence. The appellant expressly stated before enquiry officer that he did hot desire to examine any witnesses or tender documentary evidence. He did not contend before the Collector of Customs that the proceeding before the enquiry officer was unfair or that the Collector of Customs should give an opportunity to him to lead evidence. The enquiry under Article 311 is a domestic enquiry, and the Court is not concerned with the question whether on the evidence before the officer or authority passing the order against the civil servant, there was sufficient evidence to justify the order. The guarantee under Article 311 is of the regularity of the enquiry. If the enquiry is not vitiated on the ground of any procedural irregularity the Court is not concerned to decide whether the evidence justified the order. Our attention was invited to certain statements made by the enquiry officer who was examined as a witness on behalf of the Union of India but we do not think that there is anything which would justify us in holding that the enquiry held by the enquiry officer was vitiated.
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Rashtriya Colliery Mazdoor Sangh Dhanbad Vs. Emp. In Relation To Mang. Of Kend.C.&Ors | come to the aid of the Appellant for the simple reason that in that case, the Union had challenged the judgment of the Division Bench of the High Court before this Court. In the present case, the judgment of the High Court dated 18 May 2004 modifying the Award of the Industrial Tribunal attained finality. In fact, in their writ petition of 2007 the workmen sought implementation of the judgment rendered on 18 May 2004. The entitlement that the workmen claim must hence flow out of the judgment of the High Court by which the workmen were entitled to the grant of a preference in future employment by the management by relaxing conditions of age and educational qualifications. This distinction has, in fact, been noted in a judgment recently delivered by this Court on 3 October 2016, in Workmen Rastriya Colliery Mazdoor Sangh v. Bharat Coking Coal Ltd. (C.A. 13953 of 2015). This Court while declining to grant reinstatement allowed compensation to fourteen workmen whose services were in issue, each in the amount of Rupees two lakhs in full and final settlement of all claims for compensation. The relevant part of the judgment rendered by this Court on 3 October 2016 is extracted below :"7. The basic grievance of the workmen is that as a result of the position which has ensued, the workmen governed by the present proceedings of whom only 14 are left in the fray, are virtually without any relief or remedy in practical terms. The workmen were engaged between 1987 and 1989. Nearly 27 years have elapsed since then. Many of the 14 workmen would be on the verge of attaining the age of retirement. There is no occasion at present to grant them reinstatement since in any event, such relief has been denied in the judgment of the High Court dated 18 May 2004 which has not been challenged. However, the predicament of the workmen is real. Two sets of workmen in the same colliery under the same company have received unequal treatment. The present group of workmen has faced attrition in numbers and has been left with no practical relief. This situation should be remedied, to the extent that is now permissible in law, having regard to the above background. In order to render full, final and complete justice, we are of the view that an order for the payment of compensation in final settlement of all the claims, dues and outstandings payable to the 14 workmen in question would meet the ends of justice.8. We accordingly direct that the Respondents shall deposit with the Central Government Tribunal (No.2) at Dhanbad an amount of LTwo lakhs each towards compensation payable to each one of the 14 workmen. This amount shall be in full and final satisfaction of all the claims, demands and outstandings. Upon deposit of the amount, the Award of the Industrial Tribunal dated 9 September 1996, as modified by the High Court on 18 May 2004 shall be marked as satisfied. The Respondents shall deposit the amount as directed hereinabove, within a period of two months from today before the Central Government Industrial Tribunal (No.2) Dhanbad in Reference 26 of 1993. The amount shall be disbursed to the workmen concerned subject to due verification of identity by the Industrial Tribunal".7. In the present case, the counter affidavit filed by the first respondent before this Court contains a specific admission that the eighty eight workmen governed by the reference were working as `Tyndals on surface as well as in underground mines through contractors at Kenduadih Colliery. The counter affidavit states that the reliance which is sought to be placed by the workmen on replies to queries under the Right to Information Act is misleading and that the appointments in those cases were made by the first respondent in category I whereas `Tyndals are appointed in category IV. We may note at this stage, that during the pendency of these proceedings an order was passed on 11 December 2015 to enable the respondents to ascertain the position with regard to the vacancies in the above category. A Committee was constituted by the first respondent which by its report dated 2 January 2016 has observed that there is no vacancy in the post of Tyndal, category IV either in respect of Kenduadih Colliery or the Pootkee Balihari area as a whole. Kenduadih Colliery is stated to be a closed mine. A statement has been annexed indicating the existence of surplus manpower.8. In the Judgment of this Court rendered on 3 October 2016, noted earlier, reasons have been indicated as to why it would not be practicable to grant reinstatement particularly since such relief was denied in the judgment of the High Court dated 18 May 2004, which has not been challenged. The workmen in that case were engaged between1987-1989. Nearly twenty seven years had elapsed and many of the workmen would have been on the verge of retirement. However, while taking note of the fact that two sets of workmen in the same colliery and under the same company have received unequal treatment, this Court ordered payment of compensation each in the amount of Rupees two lakhs to the workmen. The workmen in that case were employed as general mazdoors. The workmen in the present case belong to the skilled category of Tyndals which as noted earlier are comprised in category IV. Having due regard to this position, in the present case, it would be appropriate to direct that the first respondent shall in full and final settlement of all the claims and outstandings of the eighty eight workmen concerned in the reference deposit an amount of Rupees four lakhs each per workman before the Central Government Industrial Tribunal (No.2) Dhanbad in Reference 54 of 1993. The amount shall be disbursed to the workmen concerned subject to due verification of their identity by the Industrial Tribunal. This amount shall be in full and final satisfaction of all claims, demands and outstandings payable to the workmen. | 1[ds]7. In the present case, the counter affidavit filed by the first respondent before this Court contains a specific admission that the eighty eight workmen governed by the reference were working as `Tyndals on surface as well as in underground mines through contractors at Kenduadih Colliery. The counter affidavit states that the reliance which is sought to be placed by the workmen on replies to queries under the Right to Information Act is misleading and that the appointments in those cases were made by the first respondent in category I whereas `Tyndals are appointed in category IV. We may note at this stage, that during the pendency of these proceedings an order was passed on 11 December 2015 to enable the respondents to ascertain the position with regard to the vacancies in the above category. A Committee was constituted by the first respondent which by its report dated 2 January 2016 has observed that there is no vacancy in the post of Tyndal, category IV either in respect of Kenduadih Colliery or the Pootkee Balihari area as a whole. Kenduadih Colliery is stated to be a closed mine. A statement has been annexed indicating the existence of surplus manpower.8. In the Judgment of this Court rendered on 3 October 2016, noted earlier, reasons have been indicated as to why it would not be practicable to grant reinstatement particularly since such relief was denied in the judgment of the High Court dated 18 May 2004, which has not been challenged. The workmen in that case were engaged between1987-1989. Nearly twenty seven years had elapsed and many of the workmen would have been on the verge of retirement. However, while taking note of the fact that two sets of workmen in the same colliery and under the same company have received unequal treatment, this Court ordered payment of compensation each in the amount of Rupees two lakhs to the workmen. The workmen in that case were employed as general mazdoors. The workmen in the present case belong to the skilled category of Tyndals which as noted earlier are comprised in category IV. Having due regard to this position, in the present case, it would be appropriate to direct that the first respondent shall in full and final settlement of all the claims and outstandings of the eighty eight workmen concerned in the reference deposit an amount of Rupees four lakhs each per workman before the Central Government Industrial Tribunal (No.2) Dhanbad in Reference 54 of 1993. The amount shall be disbursed to the workmen concerned subject to due verification of their identity by the Industrial Tribunal. This amount shall be in full and final satisfaction of all claims, demands and outstandings payable to the workmen. | 1 | 1,914 | 488 | ### Instruction:
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come to the aid of the Appellant for the simple reason that in that case, the Union had challenged the judgment of the Division Bench of the High Court before this Court. In the present case, the judgment of the High Court dated 18 May 2004 modifying the Award of the Industrial Tribunal attained finality. In fact, in their writ petition of 2007 the workmen sought implementation of the judgment rendered on 18 May 2004. The entitlement that the workmen claim must hence flow out of the judgment of the High Court by which the workmen were entitled to the grant of a preference in future employment by the management by relaxing conditions of age and educational qualifications. This distinction has, in fact, been noted in a judgment recently delivered by this Court on 3 October 2016, in Workmen Rastriya Colliery Mazdoor Sangh v. Bharat Coking Coal Ltd. (C.A. 13953 of 2015). This Court while declining to grant reinstatement allowed compensation to fourteen workmen whose services were in issue, each in the amount of Rupees two lakhs in full and final settlement of all claims for compensation. The relevant part of the judgment rendered by this Court on 3 October 2016 is extracted below :"7. The basic grievance of the workmen is that as a result of the position which has ensued, the workmen governed by the present proceedings of whom only 14 are left in the fray, are virtually without any relief or remedy in practical terms. The workmen were engaged between 1987 and 1989. Nearly 27 years have elapsed since then. Many of the 14 workmen would be on the verge of attaining the age of retirement. There is no occasion at present to grant them reinstatement since in any event, such relief has been denied in the judgment of the High Court dated 18 May 2004 which has not been challenged. However, the predicament of the workmen is real. Two sets of workmen in the same colliery under the same company have received unequal treatment. The present group of workmen has faced attrition in numbers and has been left with no practical relief. This situation should be remedied, to the extent that is now permissible in law, having regard to the above background. In order to render full, final and complete justice, we are of the view that an order for the payment of compensation in final settlement of all the claims, dues and outstandings payable to the 14 workmen in question would meet the ends of justice.8. We accordingly direct that the Respondents shall deposit with the Central Government Tribunal (No.2) at Dhanbad an amount of LTwo lakhs each towards compensation payable to each one of the 14 workmen. This amount shall be in full and final satisfaction of all the claims, demands and outstandings. Upon deposit of the amount, the Award of the Industrial Tribunal dated 9 September 1996, as modified by the High Court on 18 May 2004 shall be marked as satisfied. The Respondents shall deposit the amount as directed hereinabove, within a period of two months from today before the Central Government Industrial Tribunal (No.2) Dhanbad in Reference 26 of 1993. The amount shall be disbursed to the workmen concerned subject to due verification of identity by the Industrial Tribunal".7. In the present case, the counter affidavit filed by the first respondent before this Court contains a specific admission that the eighty eight workmen governed by the reference were working as `Tyndals on surface as well as in underground mines through contractors at Kenduadih Colliery. The counter affidavit states that the reliance which is sought to be placed by the workmen on replies to queries under the Right to Information Act is misleading and that the appointments in those cases were made by the first respondent in category I whereas `Tyndals are appointed in category IV. We may note at this stage, that during the pendency of these proceedings an order was passed on 11 December 2015 to enable the respondents to ascertain the position with regard to the vacancies in the above category. A Committee was constituted by the first respondent which by its report dated 2 January 2016 has observed that there is no vacancy in the post of Tyndal, category IV either in respect of Kenduadih Colliery or the Pootkee Balihari area as a whole. Kenduadih Colliery is stated to be a closed mine. A statement has been annexed indicating the existence of surplus manpower.8. In the Judgment of this Court rendered on 3 October 2016, noted earlier, reasons have been indicated as to why it would not be practicable to grant reinstatement particularly since such relief was denied in the judgment of the High Court dated 18 May 2004, which has not been challenged. The workmen in that case were engaged between1987-1989. Nearly twenty seven years had elapsed and many of the workmen would have been on the verge of retirement. However, while taking note of the fact that two sets of workmen in the same colliery and under the same company have received unequal treatment, this Court ordered payment of compensation each in the amount of Rupees two lakhs to the workmen. The workmen in that case were employed as general mazdoors. The workmen in the present case belong to the skilled category of Tyndals which as noted earlier are comprised in category IV. Having due regard to this position, in the present case, it would be appropriate to direct that the first respondent shall in full and final settlement of all the claims and outstandings of the eighty eight workmen concerned in the reference deposit an amount of Rupees four lakhs each per workman before the Central Government Industrial Tribunal (No.2) Dhanbad in Reference 54 of 1993. The amount shall be disbursed to the workmen concerned subject to due verification of their identity by the Industrial Tribunal. This amount shall be in full and final satisfaction of all claims, demands and outstandings payable to the workmen.
### Response:
1
### Explanation:
7. In the present case, the counter affidavit filed by the first respondent before this Court contains a specific admission that the eighty eight workmen governed by the reference were working as `Tyndals on surface as well as in underground mines through contractors at Kenduadih Colliery. The counter affidavit states that the reliance which is sought to be placed by the workmen on replies to queries under the Right to Information Act is misleading and that the appointments in those cases were made by the first respondent in category I whereas `Tyndals are appointed in category IV. We may note at this stage, that during the pendency of these proceedings an order was passed on 11 December 2015 to enable the respondents to ascertain the position with regard to the vacancies in the above category. A Committee was constituted by the first respondent which by its report dated 2 January 2016 has observed that there is no vacancy in the post of Tyndal, category IV either in respect of Kenduadih Colliery or the Pootkee Balihari area as a whole. Kenduadih Colliery is stated to be a closed mine. A statement has been annexed indicating the existence of surplus manpower.8. In the Judgment of this Court rendered on 3 October 2016, noted earlier, reasons have been indicated as to why it would not be practicable to grant reinstatement particularly since such relief was denied in the judgment of the High Court dated 18 May 2004, which has not been challenged. The workmen in that case were engaged between1987-1989. Nearly twenty seven years had elapsed and many of the workmen would have been on the verge of retirement. However, while taking note of the fact that two sets of workmen in the same colliery and under the same company have received unequal treatment, this Court ordered payment of compensation each in the amount of Rupees two lakhs to the workmen. The workmen in that case were employed as general mazdoors. The workmen in the present case belong to the skilled category of Tyndals which as noted earlier are comprised in category IV. Having due regard to this position, in the present case, it would be appropriate to direct that the first respondent shall in full and final settlement of all the claims and outstandings of the eighty eight workmen concerned in the reference deposit an amount of Rupees four lakhs each per workman before the Central Government Industrial Tribunal (No.2) Dhanbad in Reference 54 of 1993. The amount shall be disbursed to the workmen concerned subject to due verification of their identity by the Industrial Tribunal. This amount shall be in full and final satisfaction of all claims, demands and outstandings payable to the workmen.
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The Travancore Rubber And Teaco., Ltd Vs. The Commissioner Of Agriculturalincome-Tax, Kerala | reference No. 18 of 1955.3. During the accounting year 1951 corresponding to the assessment year 1952-53 the appellant had under cultivation a total area of 3,426.55 acres of which 3,091.91 acres were mature yielding trees and 334.64 acres had immature rubber trees. In that year a sum of Rs. 59,271-9-5 was expenditure incurred for the upkeep and maintenance of immature portion of the rubber estate. That sum was allowed by the Agricultural Income-tax Tribunal and at the instance of the respondent a reference was made under S. 60(1) of the Act to the High Court and that was reference No. 19 of 1955.4. In Agricultural Income-tax Reference No. 15 of 1955 which related to accounting year 1952 and the assessment year 1953-54, the area under cultivation was 3,453.65 out of which 2,967.91 acres had mature rubber yielding trees and 485.74 acres had immature rubber growing trees. In that year the amount expended on the maintenance and tending of the immature rubber trees was Rs. 42,660-4-1. In that case, however, the Agricultural Income-tax Tribunal rejected the appellants claim and disallowed the expenditure. At the instance of the appellant a case was stated to the High Court under S. 60(1) of the Act and was answered in the negative and against the appellant. In all the cases the assessee company is the appellant and the main question for decision is whether the amount expended for the upkeep and maintenance of the immature rubber trees is a permissible deduction under S. 5(j) of the Act.5. The charging Section under the Act is S. 3 and S. 5 relates to computation of agricultural income. It provides:-S. 5 "The agricultural income of a person shall be computed after making the following deductions, namely:-....... ..... ..... ...... ..... ..... ... ... .... ...(j) any expenditure (not being in the nature of capital expenditure or personal expenses of the assessee) laid out or expended wholly and exclusively for the purpose of deriving the agricultural income;.In regard to this income the High Court held:"We find it impossible to say that the amounts spent on the upkeep and maintenance of the immature rubber plants were laid out or expended "for the purpose of deriving the agricultural income, much less that they were laid out or expended "wholly and exclusively for that purpose. The agricultural income, in the context, can only mean the agricultural income obtained in the accounting year concerned and not the agricultural income of any other period.In our opinion the High Court has taken an erroneous view of the relevant provision. It is not denied that the expenditure claimed as a deduction was wholly and exclusively laid out for the purpose of deriving income but the use of the definite article "the before agricultural income has given rise to the interpretation that deduction is to be from the income of the year in which the trees on which the amount claimed was expended bore any income. In a somewhat similar case Vallambrosa Rubber Co. Ltd. v. Farmer, (1910) 5 Tax Cas 529 the expenditure of the kind now claimed was allowed under the corresponding provision of the English Income-tax Act. In that case a rubber company had an estate in which in the year of assessment only 1/7 produced rubber and the other 6/7 was in process of cultivation for the production of rubber. It may be added that rubber trees do not yield any rubber until they are about six years old. The expenditure for the superintendence, weeding etc, incurred by the company in respect of the whole estate including the non - bearing rubber estate was allowed on the ground that in arriving at the assessable profits the assessee was entitled to deduct the expenditure for superintendence, weeding etc., on the whole estate and not only on the1/7 of such expenditure. Lord President said at page 534:"Well that is for the case quite correct, but it must be taken, as you must always take a Judges dicta, secundum materiam subjectum of the case that is decided. But to say that the expression of Lord Eshers lays down that you must take each year absolutely by itself and allow no expense except the expense which can be put against the profit which is reaped for the year is in my judgment to press it much further than it will go.6. Counsel for the respondent relied upon a judgment of this Court is Assam Bengal Cement Co. Ltd., v. Commr. of Income-tax, West Bengal, 1955-1 SCR 972 : ((S) AIR 1955 SC 89 ) and particularly on a passage at page 983 (of SCR): (at p. 94 of AIR) where Bhagwati, J. observed:"The distinction was thus made between the acquisition of an income-earning asset and the process of the earning of the income. Expenditure in the acquisition of that asset was capital expenditure and expenditure in the process of the earning of the profits was revenue expenditure.But that case has no relevancy to the facts of the present case nor has that passage any applicability to the facts of the present case. The question there was whether certain payments made were by way of capital expenditure or revenue expenditure. The assessee acquired a lease from Government for twenty years and in addition to paying the rent and royalties for the lease the assessee had to pay two further sums as protection fees under the terms of the lease. Those sums were held to be capital expenditure inasmuch as they were incurred for the acquisition of an asset or an advantage of enduring nature and were no part of the working or operational expenses for carrying on the businesses of the assessee.7. In our opinion the amount expended on the superintendence, weeding, etc., of the whole estate should have been allowed against the profits earned and it is no answer to the claim for a deduction that part of those expenses produced no return in that year because all the trees were not yielding rubber in that year. | 1[ds]In our opinion the High Court has taken an erroneous view of the relevant provision. It is not denied that the expenditure claimed as a deduction was wholly and exclusively laid out for the purpose of deriving income but the use of the definite article "the before agricultural income has given rise to the interpretation that deduction is to be from the income of the year in which the trees on which the amount claimed was expended bore anythat case has no relevancy to the facts of the present case nor has that passage any applicability to the facts of the present case. The question there was whether certain payments made were by way of capital expenditure or revenue expenditure. The assessee acquired a lease from Government for twenty years and in addition to paying the rent and royalties for the lease the assessee had to pay two further sums as protection fees under the terms of the lease. Those sums were held to be capital expenditure inasmuch as they were incurred for the acquisition of an asset or an advantage of enduring nature and were no part of the working or operational expenses for carrying on the businesses of the assessee.7. In our opinion the amount expended on the superintendence, weeding, etc., of the whole estate should have been allowed against the profits earned and it is no answer to the claim for a deduction that part of those expenses produced no return in that year because all the trees were not yielding rubber in that year. | 1 | 1,450 | 272 | ### 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:
reference No. 18 of 1955.3. During the accounting year 1951 corresponding to the assessment year 1952-53 the appellant had under cultivation a total area of 3,426.55 acres of which 3,091.91 acres were mature yielding trees and 334.64 acres had immature rubber trees. In that year a sum of Rs. 59,271-9-5 was expenditure incurred for the upkeep and maintenance of immature portion of the rubber estate. That sum was allowed by the Agricultural Income-tax Tribunal and at the instance of the respondent a reference was made under S. 60(1) of the Act to the High Court and that was reference No. 19 of 1955.4. In Agricultural Income-tax Reference No. 15 of 1955 which related to accounting year 1952 and the assessment year 1953-54, the area under cultivation was 3,453.65 out of which 2,967.91 acres had mature rubber yielding trees and 485.74 acres had immature rubber growing trees. In that year the amount expended on the maintenance and tending of the immature rubber trees was Rs. 42,660-4-1. In that case, however, the Agricultural Income-tax Tribunal rejected the appellants claim and disallowed the expenditure. At the instance of the appellant a case was stated to the High Court under S. 60(1) of the Act and was answered in the negative and against the appellant. In all the cases the assessee company is the appellant and the main question for decision is whether the amount expended for the upkeep and maintenance of the immature rubber trees is a permissible deduction under S. 5(j) of the Act.5. The charging Section under the Act is S. 3 and S. 5 relates to computation of agricultural income. It provides:-S. 5 "The agricultural income of a person shall be computed after making the following deductions, namely:-....... ..... ..... ...... ..... ..... ... ... .... ...(j) any expenditure (not being in the nature of capital expenditure or personal expenses of the assessee) laid out or expended wholly and exclusively for the purpose of deriving the agricultural income;.In regard to this income the High Court held:"We find it impossible to say that the amounts spent on the upkeep and maintenance of the immature rubber plants were laid out or expended "for the purpose of deriving the agricultural income, much less that they were laid out or expended "wholly and exclusively for that purpose. The agricultural income, in the context, can only mean the agricultural income obtained in the accounting year concerned and not the agricultural income of any other period.In our opinion the High Court has taken an erroneous view of the relevant provision. It is not denied that the expenditure claimed as a deduction was wholly and exclusively laid out for the purpose of deriving income but the use of the definite article "the before agricultural income has given rise to the interpretation that deduction is to be from the income of the year in which the trees on which the amount claimed was expended bore any income. In a somewhat similar case Vallambrosa Rubber Co. Ltd. v. Farmer, (1910) 5 Tax Cas 529 the expenditure of the kind now claimed was allowed under the corresponding provision of the English Income-tax Act. In that case a rubber company had an estate in which in the year of assessment only 1/7 produced rubber and the other 6/7 was in process of cultivation for the production of rubber. It may be added that rubber trees do not yield any rubber until they are about six years old. The expenditure for the superintendence, weeding etc, incurred by the company in respect of the whole estate including the non - bearing rubber estate was allowed on the ground that in arriving at the assessable profits the assessee was entitled to deduct the expenditure for superintendence, weeding etc., on the whole estate and not only on the1/7 of such expenditure. Lord President said at page 534:"Well that is for the case quite correct, but it must be taken, as you must always take a Judges dicta, secundum materiam subjectum of the case that is decided. But to say that the expression of Lord Eshers lays down that you must take each year absolutely by itself and allow no expense except the expense which can be put against the profit which is reaped for the year is in my judgment to press it much further than it will go.6. Counsel for the respondent relied upon a judgment of this Court is Assam Bengal Cement Co. Ltd., v. Commr. of Income-tax, West Bengal, 1955-1 SCR 972 : ((S) AIR 1955 SC 89 ) and particularly on a passage at page 983 (of SCR): (at p. 94 of AIR) where Bhagwati, J. observed:"The distinction was thus made between the acquisition of an income-earning asset and the process of the earning of the income. Expenditure in the acquisition of that asset was capital expenditure and expenditure in the process of the earning of the profits was revenue expenditure.But that case has no relevancy to the facts of the present case nor has that passage any applicability to the facts of the present case. The question there was whether certain payments made were by way of capital expenditure or revenue expenditure. The assessee acquired a lease from Government for twenty years and in addition to paying the rent and royalties for the lease the assessee had to pay two further sums as protection fees under the terms of the lease. Those sums were held to be capital expenditure inasmuch as they were incurred for the acquisition of an asset or an advantage of enduring nature and were no part of the working or operational expenses for carrying on the businesses of the assessee.7. In our opinion the amount expended on the superintendence, weeding, etc., of the whole estate should have been allowed against the profits earned and it is no answer to the claim for a deduction that part of those expenses produced no return in that year because all the trees were not yielding rubber in that year.
### Response:
1
### Explanation:
In our opinion the High Court has taken an erroneous view of the relevant provision. It is not denied that the expenditure claimed as a deduction was wholly and exclusively laid out for the purpose of deriving income but the use of the definite article "the before agricultural income has given rise to the interpretation that deduction is to be from the income of the year in which the trees on which the amount claimed was expended bore anythat case has no relevancy to the facts of the present case nor has that passage any applicability to the facts of the present case. The question there was whether certain payments made were by way of capital expenditure or revenue expenditure. The assessee acquired a lease from Government for twenty years and in addition to paying the rent and royalties for the lease the assessee had to pay two further sums as protection fees under the terms of the lease. Those sums were held to be capital expenditure inasmuch as they were incurred for the acquisition of an asset or an advantage of enduring nature and were no part of the working or operational expenses for carrying on the businesses of the assessee.7. In our opinion the amount expended on the superintendence, weeding, etc., of the whole estate should have been allowed against the profits earned and it is no answer to the claim for a deduction that part of those expenses produced no return in that year because all the trees were not yielding rubber in that year.
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Union of India and Others Vs. A. S. Amarnath | 1. The Union of India as appellant has brought in challenge the judgment and order of the High Court of Judicature at Madras allowing the writ petition filed by the respondent, proprietor of one Sarathi bye House, Madurai. The Regional Provident Fund Commissioner had taken the view that the respondent had continued the business of the erstwhile firm wheter ? his father was a managing partner after a new firm was established by him earlier with his brother as its partner and thereafter as proprietor and therefore, the infancy benefit could not be claimed by the respondents concern as per the provisions of Employees Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter to be referred to as "the Act"). The respondents contention before the authorities under the said Act was that for the period from 23.1.1978 to 28.2.1981, infancy benefit was available under Section 16(1)(b) of the Ad. The authority functioning under the Act repelled that contention by taking the view that the respondents concern was not entitled to such benefit as it was the continuation of the erstwhile firms business. The respondent carried the matter in a writ petition before the High Court. The High Court by the impugned judgment has taken the view that the respondents concern was entitled to the infancy benefit as it was a new concern and the earlier partnership business run by the erstwhile partnership concern was already closed and a new business was run by the new concern which entitled it to claim the infancy benefit. The view taken by the High Court is based on relevant facts which have been noted in the impugned judgment. Earlier, the firm was Sarathi & Co. There were three partners constituting the said firm. The partners were, (i) Shri A. R. Sahasraman, (ii) Shri A. P. Keswavan, and (iii) Smt A. R. S. Thulasi Dal. Incidentally, the first partner was the father of the present respondent. The business of the said firm could not be carried out further as the respondents father who was the managing partner of the said firm died on 6.11.1977. The business was closed. In view of the closure of the said business, all workmen earlier employed by the said firm were given closure compensation as per the provisions of the Industrial Disputes Act, 1947. The workmen accepted the said closure compensation. The union of work men representing them sought to challenge the said closure. The industrial dispute raised by them was not referred for ad judication by the State Government under the provisions of the Industrial Disputes Act as it was held by the State Government that the closure was bona fide, valid and effective. The workmen accepted the said finding of the State Government. Thereafter, the respondent who was one of the sons of the deceased partner of the firm, Sarathi & Co. along with his brother A. S. Ramesh entered into a partnership on 13.2.1978 under the name and style of Sarathi Dye House which survived, up to 1981 and thereafter got dissolved. On these facts, the High Court has noted that it could not be held that the business of the old firm was continued by the respondent in the firm wherein the partners were entirely different and even though some of the workmen might have been employed by the new firm, it cannot be said that the old business was continued by the new concern. It was also observed that merely because-the new entity is utilising the licence exploited (sie) by the old firm and the name of the new firm is identical with the name of the old firm and items of machinery utilised by the old firm have been availed of by the new concern, it cannot be said that the said business had continued and therefore, the claim of infancy benefit was not available to the new concern. These are pure finding of facts based on relevant evidence. In our view, it requires interference under Art. 136 of the Constitution. 2. Learned counsel for the appellants relied upon two decisions of this Court, the case of Sayaji Mills Ltd. v. R.P.F Commr. 1985 (1) CLR 232 S.C. and in the case of R.P.F. Comrnr. v. Naraini Udyog 1996 (5) SCC 7522. So far as the first decision is concerned, it was found on facts by this Court that temporary cessation of business by a concern because of winding up of a new concern once the auction purchaser under the orders of the Court had restarted the very same concern after purchasing it in any winding up proceeding. The said decision is based on its own facts and therefore, cannot be pressed into service in the present case. This is not a case of temporary cessation of the erstwhile business of the concern because of any order of the Court. On the other hand, it was a case of closure which was held bona fide and accepted by the workmen by taking the closure compensation from the erstwhile employer. In the latter decision, this Court was concerned with an entirely different question under Section 7-A of the Act. Two companies were found to have functional unity and integrality and therefore, they can be clubbed as per the provisions of Section 7-A of the Ad for the purpose of applicability of the Act. The finding reached by the Commissioner in that case dearly indicated that though for namesake they were treated to be two concerns, yet truly speaking, they were part and parcel of one company. On these facts, therefore, Section 7-A was found applicable by this Court. There is no such question in the present case. We are concerned with the question of infancy benefit claimed by the respondent which is found justifiably available to the respondent on the facts of the present case. | 0[ds]Two companies were found to have functional unity and integrality and therefore, they can be clubbed as per the provisions of SectionA of the Ad for the purpose of applicability of the Act. The finding reached by the Commissioner in that case dearly indicated that though for namesake they were treated to be two concerns, yet truly speaking, they were part and parcel of one company. On these facts, therefore, SectionA was found applicable by this Court. There is no such question in the present case. We are concerned with the question of infancy benefit claimed by the respondent which is found justifiably available to the respondent on the facts of the present case. | 0 | 1,065 | 128 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
### Input:
1. The Union of India as appellant has brought in challenge the judgment and order of the High Court of Judicature at Madras allowing the writ petition filed by the respondent, proprietor of one Sarathi bye House, Madurai. The Regional Provident Fund Commissioner had taken the view that the respondent had continued the business of the erstwhile firm wheter ? his father was a managing partner after a new firm was established by him earlier with his brother as its partner and thereafter as proprietor and therefore, the infancy benefit could not be claimed by the respondents concern as per the provisions of Employees Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter to be referred to as "the Act"). The respondents contention before the authorities under the said Act was that for the period from 23.1.1978 to 28.2.1981, infancy benefit was available under Section 16(1)(b) of the Ad. The authority functioning under the Act repelled that contention by taking the view that the respondents concern was not entitled to such benefit as it was the continuation of the erstwhile firms business. The respondent carried the matter in a writ petition before the High Court. The High Court by the impugned judgment has taken the view that the respondents concern was entitled to the infancy benefit as it was a new concern and the earlier partnership business run by the erstwhile partnership concern was already closed and a new business was run by the new concern which entitled it to claim the infancy benefit. The view taken by the High Court is based on relevant facts which have been noted in the impugned judgment. Earlier, the firm was Sarathi & Co. There were three partners constituting the said firm. The partners were, (i) Shri A. R. Sahasraman, (ii) Shri A. P. Keswavan, and (iii) Smt A. R. S. Thulasi Dal. Incidentally, the first partner was the father of the present respondent. The business of the said firm could not be carried out further as the respondents father who was the managing partner of the said firm died on 6.11.1977. The business was closed. In view of the closure of the said business, all workmen earlier employed by the said firm were given closure compensation as per the provisions of the Industrial Disputes Act, 1947. The workmen accepted the said closure compensation. The union of work men representing them sought to challenge the said closure. The industrial dispute raised by them was not referred for ad judication by the State Government under the provisions of the Industrial Disputes Act as it was held by the State Government that the closure was bona fide, valid and effective. The workmen accepted the said finding of the State Government. Thereafter, the respondent who was one of the sons of the deceased partner of the firm, Sarathi & Co. along with his brother A. S. Ramesh entered into a partnership on 13.2.1978 under the name and style of Sarathi Dye House which survived, up to 1981 and thereafter got dissolved. On these facts, the High Court has noted that it could not be held that the business of the old firm was continued by the respondent in the firm wherein the partners were entirely different and even though some of the workmen might have been employed by the new firm, it cannot be said that the old business was continued by the new concern. It was also observed that merely because-the new entity is utilising the licence exploited (sie) by the old firm and the name of the new firm is identical with the name of the old firm and items of machinery utilised by the old firm have been availed of by the new concern, it cannot be said that the said business had continued and therefore, the claim of infancy benefit was not available to the new concern. These are pure finding of facts based on relevant evidence. In our view, it requires interference under Art. 136 of the Constitution. 2. Learned counsel for the appellants relied upon two decisions of this Court, the case of Sayaji Mills Ltd. v. R.P.F Commr. 1985 (1) CLR 232 S.C. and in the case of R.P.F. Comrnr. v. Naraini Udyog 1996 (5) SCC 7522. So far as the first decision is concerned, it was found on facts by this Court that temporary cessation of business by a concern because of winding up of a new concern once the auction purchaser under the orders of the Court had restarted the very same concern after purchasing it in any winding up proceeding. The said decision is based on its own facts and therefore, cannot be pressed into service in the present case. This is not a case of temporary cessation of the erstwhile business of the concern because of any order of the Court. On the other hand, it was a case of closure which was held bona fide and accepted by the workmen by taking the closure compensation from the erstwhile employer. In the latter decision, this Court was concerned with an entirely different question under Section 7-A of the Act. Two companies were found to have functional unity and integrality and therefore, they can be clubbed as per the provisions of Section 7-A of the Ad for the purpose of applicability of the Act. The finding reached by the Commissioner in that case dearly indicated that though for namesake they were treated to be two concerns, yet truly speaking, they were part and parcel of one company. On these facts, therefore, Section 7-A was found applicable by this Court. There is no such question in the present case. We are concerned with the question of infancy benefit claimed by the respondent which is found justifiably available to the respondent on the facts of the present case.
### Response:
0
### Explanation:
Two companies were found to have functional unity and integrality and therefore, they can be clubbed as per the provisions of SectionA of the Ad for the purpose of applicability of the Act. The finding reached by the Commissioner in that case dearly indicated that though for namesake they were treated to be two concerns, yet truly speaking, they were part and parcel of one company. On these facts, therefore, SectionA was found applicable by this Court. There is no such question in the present case. We are concerned with the question of infancy benefit claimed by the respondent which is found justifiably available to the respondent on the facts of the present case.
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Phulchand Exports Ltd Vs. Ooo Patriot | 74 would show that it deals with the measure of damages in two classes of cases (i) where the contract names a sum to be paid in case of breach and (ii) where the contract contains any other stipulation by way of penalty. In Fateh Chand7, this Court held : “....The expression “if the contract contains any other stipulation by way of penalty” widens the operation of the section so as to make it applicable to all stipulations by way of penalty, whether the stipulation is to pay an amount of money, or is of another character, as, for example, providing for forfeiture of money already paid. There is nothing in the expression which implies that the stipulation must be one for rendering something after the contract is broken. There is no ground for holding that the expression “contract contains any other stipulation by way of penalty” is limited to cases of stipulation in the nature of an agreement to pay money or deliver property on breach and does not comprehend covenants under which amounts paid or property delivered under the contract, which by the terms of the contract expressly or by clear implication are liable to be forfeited.” 29. In the case of Maula Bux3 while dealing with Section 74 of the 1872 Act, this Court was concerned with the case of forfeiture of the amount of deposit. It was held, “forfeiture of reasonable amount paid as earnest money does not amount to imposing a penalty. But, if forfeiture is of the nature of penalty, Section 74 applies”. It was further held, `where under the terms of the contract, the party in breach has undertaken to pay a sum of money or to forfeit a sum of money which he has already paid to the party complaining of a breach of contract, the undertaking is of the nature of a penalty. We are afraid the decision of this Court in Maula Bux3 does not support the contention of the learned senior counsel that the stipulation of reimbursement contained in last para of clause 4 of the contract to transfer the payment of goods already received by sellers in the event of non- delivery of the goods within 180 days in the customs area of Russian Federation amounts to penalty. The stipulation for reimbursement in the event stated in last para of clause 4 of the contract is not in the nature of penalty; the clause is not in terrorem. It is neither punitive nor vindictive. Moreover, what has been provided in the contract is the reimbursement of the price of the goods paid by the buyers to the sellers. The clause of reimbursement or repayment in the event of delayed delivery/arrival or non-delivery is not to be regarded as damages. Even in the absence of such clause, where the seller has breached his obligations at threshold, the buyer is entitled to the return of the price paid and for damages. We can see no reason why the sellers should not be bound by it and the court should not enforce such term. No way the clause is in the nature of threat held over the sellers in terror. 30. Section 23 of the 1872 Act reads as under : “S. 23. What considerations and objects are lawful, and what not.-- The consideration or object of an agreement is lawful, unless-- it is forbidden by law; or is of such a nature that, if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy. In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void.” 31. The transactions covered by Section 23 are the transactions where the consideration or object of such transaction is forbidden by law or the transaction is of such a nature that if permitted would defeat the provisions of any law or the transaction is fraudulent or the transaction involves or implies injury to the person or property of another or where the court regards it immoral or opposed to public policy. Whether particular transaction is contrary to a public policy would ordinarily depend upon the nature of transaction. Where experienced businessmen are involved in a commercial contract and the parties are not of unequal bargaining power, the agreed terms must ordinarily be respected as the parties may be taken to have had regard to the matters known to them. The sellers and the buyers in the present case are business persons having no unequal bargaining powers. They agreed on all terms of the contract being in conformity with the international trade and commerce. Having regard to the subject matter of the contract, the clause for reimbursement or repayment in the circumstances provided therein is neither unreasonable nor unjust; far from being extravagant or unconscionable. It is the precise sum which the sellers are required to reimburse to the buyers, which they had received for the goods, in case of the non-arrival of the goods within the prescribed time. More so, the fact of the matter is that goods never arrived at the port of discharge. The Arbitral Tribunal has only awarded reimbursement of half the price paid by the buyers to the sellers and, therefore, the award cannot be held to be unjust, unreasonable or unconscionable or contrary to the public policy of India. 32. Mr. Krishnan Venugopal, learned senior counsel would submit that the goods were insured and the buyers were made beneficiaries in the insurance policy and, therefore, they have right to claim loss for goods from the insurance company and not the sellers. Moreover, the right to claim under insurance policy is not subrogated in favour of the buyers. The argument is noted to be rejected having no merit at all for the reasons already indicated above. 33. | 0[ds]There is merit in the submission of learned senior counsel that in view of the decision of this Court in Saw Pipes Ltd.2, the expression `public policy of India used in Section 48 (2)(b) has to be given wider meaning and the award could be set aside, `if it is patently illegal. At the first blush we thought of remanding the matter to the High Court, but on a deeper thought, we decided to hear the objections relating to patent illegality in the award ourselves as the award by the Arbitral Tribunal was given as far back as on October 18, 1999 and about 12 years have elapsed since then. We thought that the issue relating to enforceability of the subject award must be brought to an end finally one way or thecontract entered into between the sellers and the buyers was a CIF contract and the risk in the goods and the property passed over to the buyers upon the shipment of the goods on January 29, 1998 and in any case the property in the goods passed over to the buyers when the shipping documents were handed over to them through the Banking channels on negotiations of letter of credit on February 19, 1998. He would submit that from this day the sellers liabilities ceased to exist. In this connection he relied upon a decision of this Court in Maula Bux vs. Union of India (1969 (2) SCC 554 ). He also referred to Section 26 of the Sale of Goods Act, 1930 (for short `1930 Act).15. Learned Senior counsel also submitted that the stipulation in clause 4,case the goods dont arrive the customs area of Russian Federation within 180 days from the date of payment the transferred amount is to be reimbursed to the Buyersamounts to penalty within the meaning of Section 74 of the Contract Act, 1872 (for short, `1872 Act) and being unconscionable bargain is void under Section 23 of the 1872 Act and, therefore, enforcement of the subject award by the Indian Courts is contrary to `public policy of India. He relied upon two decisions of House of Lords; (i)Lord Elphinstone vs. The Monkland Iron and Coal Company Limited, and Liquidators (1886 House of Lords VOL. XI page332); and (ii) DunlopPneumatic Tyre Company Limited vs. New Garage and Motor Company Limited ((1915) ACis late shipment of goods by 16 days. Besides delay in shipping the goods and the delayed departure of the vessel from the port of loading, the goods were shipped in a vessel having no firm commitment to reach the port of Novorossiysk as the first port of discharge. As a matter of fact the sellers gave a line bill of lading giving a carrier right to determine the line of unloading and the consecutive order of destination of sea ports and as a result of that the goods were loaded on board the vessel that was no longer to reach the port of Novorossiysk as first port of discharge. The contract clearly provides in clause 4 that shipment should be done by a vessel that is on way to Novorossiysk as the first port of discharge. This term in the contract is not inconsequential or immaterial but seems to be fundamental having regard to the subject matter of the goods. The sellers breached the terms of the contract at the very threshold by late shipment of goods and by loading on board the vessel which was no longer to reach the port of Novorossiysk as the first port of discharge. The sellers having breached the terms of the C.I.F. contract at the threshold, it is very difficult to hold that property in the goods got transferred out and out to the buyers on shipment of the goods or when the shipping documents were handed over to the bank for negotiations of L/C. In a case such as this one, the sellers failure to discharge the primary obligation under the contract regarding the shipment of goods can be held to have resulted in postponement of transfer of title in goods to the buyers. In any case the prima facie rule contemplated in Section 26 of the 1930 Act stands rebutted in the facts of the present case.23. Even if the property in the goods is deemed to have transferred to the buyers, since there was no delivery of the goods due to the fault of the sellers in shipment of the goods, firstly belatedly and then by a vessel that was not on way to Novorossiysk as the first port of discharge, the goods continued to be at the risk of the sellers as they were in fault. In that situation, first proviso to Section 26 of the 1930 Act is clearly attracted.24. We do not find any merit in the case set up by the sellers that their liability ceased to exist on shipment of the goods on January 29, 1998 or in any case when the shipping documents were handed over through the banking channels on negotiations of Letter of Credit. As in the present case, the sellers were in breach at the threshold, it is immaterial whether or not the buyers had a right of action against the insurers or carrier. | 0 | 7,034 | 954 | ### Instruction:
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74 would show that it deals with the measure of damages in two classes of cases (i) where the contract names a sum to be paid in case of breach and (ii) where the contract contains any other stipulation by way of penalty. In Fateh Chand7, this Court held : “....The expression “if the contract contains any other stipulation by way of penalty” widens the operation of the section so as to make it applicable to all stipulations by way of penalty, whether the stipulation is to pay an amount of money, or is of another character, as, for example, providing for forfeiture of money already paid. There is nothing in the expression which implies that the stipulation must be one for rendering something after the contract is broken. There is no ground for holding that the expression “contract contains any other stipulation by way of penalty” is limited to cases of stipulation in the nature of an agreement to pay money or deliver property on breach and does not comprehend covenants under which amounts paid or property delivered under the contract, which by the terms of the contract expressly or by clear implication are liable to be forfeited.” 29. In the case of Maula Bux3 while dealing with Section 74 of the 1872 Act, this Court was concerned with the case of forfeiture of the amount of deposit. It was held, “forfeiture of reasonable amount paid as earnest money does not amount to imposing a penalty. But, if forfeiture is of the nature of penalty, Section 74 applies”. It was further held, `where under the terms of the contract, the party in breach has undertaken to pay a sum of money or to forfeit a sum of money which he has already paid to the party complaining of a breach of contract, the undertaking is of the nature of a penalty. We are afraid the decision of this Court in Maula Bux3 does not support the contention of the learned senior counsel that the stipulation of reimbursement contained in last para of clause 4 of the contract to transfer the payment of goods already received by sellers in the event of non- delivery of the goods within 180 days in the customs area of Russian Federation amounts to penalty. The stipulation for reimbursement in the event stated in last para of clause 4 of the contract is not in the nature of penalty; the clause is not in terrorem. It is neither punitive nor vindictive. Moreover, what has been provided in the contract is the reimbursement of the price of the goods paid by the buyers to the sellers. The clause of reimbursement or repayment in the event of delayed delivery/arrival or non-delivery is not to be regarded as damages. Even in the absence of such clause, where the seller has breached his obligations at threshold, the buyer is entitled to the return of the price paid and for damages. We can see no reason why the sellers should not be bound by it and the court should not enforce such term. No way the clause is in the nature of threat held over the sellers in terror. 30. Section 23 of the 1872 Act reads as under : “S. 23. What considerations and objects are lawful, and what not.-- The consideration or object of an agreement is lawful, unless-- it is forbidden by law; or is of such a nature that, if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy. In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void.” 31. The transactions covered by Section 23 are the transactions where the consideration or object of such transaction is forbidden by law or the transaction is of such a nature that if permitted would defeat the provisions of any law or the transaction is fraudulent or the transaction involves or implies injury to the person or property of another or where the court regards it immoral or opposed to public policy. Whether particular transaction is contrary to a public policy would ordinarily depend upon the nature of transaction. Where experienced businessmen are involved in a commercial contract and the parties are not of unequal bargaining power, the agreed terms must ordinarily be respected as the parties may be taken to have had regard to the matters known to them. The sellers and the buyers in the present case are business persons having no unequal bargaining powers. They agreed on all terms of the contract being in conformity with the international trade and commerce. Having regard to the subject matter of the contract, the clause for reimbursement or repayment in the circumstances provided therein is neither unreasonable nor unjust; far from being extravagant or unconscionable. It is the precise sum which the sellers are required to reimburse to the buyers, which they had received for the goods, in case of the non-arrival of the goods within the prescribed time. More so, the fact of the matter is that goods never arrived at the port of discharge. The Arbitral Tribunal has only awarded reimbursement of half the price paid by the buyers to the sellers and, therefore, the award cannot be held to be unjust, unreasonable or unconscionable or contrary to the public policy of India. 32. Mr. Krishnan Venugopal, learned senior counsel would submit that the goods were insured and the buyers were made beneficiaries in the insurance policy and, therefore, they have right to claim loss for goods from the insurance company and not the sellers. Moreover, the right to claim under insurance policy is not subrogated in favour of the buyers. The argument is noted to be rejected having no merit at all for the reasons already indicated above. 33.
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There is merit in the submission of learned senior counsel that in view of the decision of this Court in Saw Pipes Ltd.2, the expression `public policy of India used in Section 48 (2)(b) has to be given wider meaning and the award could be set aside, `if it is patently illegal. At the first blush we thought of remanding the matter to the High Court, but on a deeper thought, we decided to hear the objections relating to patent illegality in the award ourselves as the award by the Arbitral Tribunal was given as far back as on October 18, 1999 and about 12 years have elapsed since then. We thought that the issue relating to enforceability of the subject award must be brought to an end finally one way or thecontract entered into between the sellers and the buyers was a CIF contract and the risk in the goods and the property passed over to the buyers upon the shipment of the goods on January 29, 1998 and in any case the property in the goods passed over to the buyers when the shipping documents were handed over to them through the Banking channels on negotiations of letter of credit on February 19, 1998. He would submit that from this day the sellers liabilities ceased to exist. In this connection he relied upon a decision of this Court in Maula Bux vs. Union of India (1969 (2) SCC 554 ). He also referred to Section 26 of the Sale of Goods Act, 1930 (for short `1930 Act).15. Learned Senior counsel also submitted that the stipulation in clause 4,case the goods dont arrive the customs area of Russian Federation within 180 days from the date of payment the transferred amount is to be reimbursed to the Buyersamounts to penalty within the meaning of Section 74 of the Contract Act, 1872 (for short, `1872 Act) and being unconscionable bargain is void under Section 23 of the 1872 Act and, therefore, enforcement of the subject award by the Indian Courts is contrary to `public policy of India. He relied upon two decisions of House of Lords; (i)Lord Elphinstone vs. The Monkland Iron and Coal Company Limited, and Liquidators (1886 House of Lords VOL. XI page332); and (ii) DunlopPneumatic Tyre Company Limited vs. New Garage and Motor Company Limited ((1915) ACis late shipment of goods by 16 days. Besides delay in shipping the goods and the delayed departure of the vessel from the port of loading, the goods were shipped in a vessel having no firm commitment to reach the port of Novorossiysk as the first port of discharge. As a matter of fact the sellers gave a line bill of lading giving a carrier right to determine the line of unloading and the consecutive order of destination of sea ports and as a result of that the goods were loaded on board the vessel that was no longer to reach the port of Novorossiysk as first port of discharge. The contract clearly provides in clause 4 that shipment should be done by a vessel that is on way to Novorossiysk as the first port of discharge. This term in the contract is not inconsequential or immaterial but seems to be fundamental having regard to the subject matter of the goods. The sellers breached the terms of the contract at the very threshold by late shipment of goods and by loading on board the vessel which was no longer to reach the port of Novorossiysk as the first port of discharge. The sellers having breached the terms of the C.I.F. contract at the threshold, it is very difficult to hold that property in the goods got transferred out and out to the buyers on shipment of the goods or when the shipping documents were handed over to the bank for negotiations of L/C. In a case such as this one, the sellers failure to discharge the primary obligation under the contract regarding the shipment of goods can be held to have resulted in postponement of transfer of title in goods to the buyers. In any case the prima facie rule contemplated in Section 26 of the 1930 Act stands rebutted in the facts of the present case.23. Even if the property in the goods is deemed to have transferred to the buyers, since there was no delivery of the goods due to the fault of the sellers in shipment of the goods, firstly belatedly and then by a vessel that was not on way to Novorossiysk as the first port of discharge, the goods continued to be at the risk of the sellers as they were in fault. In that situation, first proviso to Section 26 of the 1930 Act is clearly attracted.24. We do not find any merit in the case set up by the sellers that their liability ceased to exist on shipment of the goods on January 29, 1998 or in any case when the shipping documents were handed over through the banking channels on negotiations of Letter of Credit. As in the present case, the sellers were in breach at the threshold, it is immaterial whether or not the buyers had a right of action against the insurers or carrier.
|
Arun Raj Vs. Union of India & Others | injury, in our opinion, not only exhibits the intention of the attacker in causing the death of the victim but also the knowledge of the attacker as to the likely consequence of such attack which could be none other than causing the death of the victim. The reasoning of the High Court as to the intention and knowledge of the respondent in attacking and causing death of the victim, therefore, is wholly erroneous and cannot be sustained." 12) In the case of Virsa Singh v. State of Punjab, [AIR 1958 SC 465 ], this court while referring to intention to cause death laid down:- "27. Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under s. 300, 3rdly. It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced that the injury was accidental or otherwise unintentional." This court further observed:- "33. It is true that in a given case the enquiry may be linked up with the seriousness of the injury,. For example, if it can be proved, or if the totality of the circumstances justify an inference, that the prisoner only intended a superficial; scratch and that by accident this victim stumbled and fell on the sword or spear that was used, then of course the offence is not murder. But that is not because the prisoner did not intend the injury that he intended to inflict to be as serious as it turned out to be but because he did not intend to inflict the injury in question at all. His intention in such a case would be to inflict a totally different injury. The difference is not one of law but one of fact; and whether the conclusion should be one way or the other is a matter of proof, where necessary, by calling in aid all reasonable inferences of fact in the absence of direct testimony. It is not one for guess-work and fanciful conjecture." 13) In Anil v. State of Haryana, [(2007) 10 SCC 274] , while referring to Virsa Singh (supra) this court laid down:- "19. In Thangaiya v. State of T.N., relying upon a celebrated decision of this Court in Virsa Singh v. State of Punjab 1958 CriLJ 818 , the Division Bench observed:17. These observations of Vivian Bose, J. have become locus classicus. The test laid down by Virsa Singh case for the applicability of Clause "thirdly" is now ingrained in our legal system and has become part of the rule of law. Under Clause "thirdly" of Section 300 IPC. culpable homicide is murder, if both the following conditions are satisfied: i.e. (a) that the act which causes death is done with the intention of causing death or is done with the intention of causing a bodily injury; and (b) that the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. It must be proved that there was an intention to inflict that particular bodily injury which, in the ordinary course of nature, was sufficient to, cause death viz. that the injury found to be present was the injury that was intended to be inflicted.18. Thus, according to the rule laid down in Virsa Singh case even if the intention of the appellant was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be murder. Illustration (c) appended to Section 300 clearly brings out this point." 14) In the aforesaid decision, this Court held that there is no fixed rule that whenever a single blow is inflicted Section 302 would not be attracted.15) It is clear from the above line of cases, that it is necessary to prove first that there was an intention of causing bodily injury; and that the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. From the evidence on record, it is very clear that the appellant intended to cause death. In light of this finding, the evidence on record makes it clear that Section 304 Part II of the IPC will not be attracted. Further PW-1, in his cross-examination asserts that the deceased held his hand out after he was stabbed in the chest. It is very likely that this action on the part of the deceased prevented the appellant from stabbing him multiple number of times. The argument might deserve some merit in case there is a sudden altercation which ensues in the heat of the moment and there is no deliberate planning. In the present case, as stated above there was due deliberation on the part of the appellant and he assaulted the deceased a day after he misbehaved with him. Hence, the contention of the learned counsel that the appellant had no intention to cause death of the deceased has no merit and, accordingly, it is rejected. | 0[ds]11) The first ingredient is easily solved by referring to the weapon used by the appellant to strike a knife blow to the appellant. The appellant in this instance has used a kitchen knife. A kitchen knife with sharp edges is a dangerous weapon and it is very obvious that the appellant was aware that the use of such a weapon can cause death or serious bodily injury that is likely to cause death. As far as the second ingredient is concerned, the appellants learned counsel contended that the fact that there was one single blow struck, proves that there was no intention to cause death. In support of the plea, reliance is placed on the decisions of this court in the case of Bhera v. State of Rajasthan, [(2000) 10 SCC 225] , Kunhayippu v. State of Kerala, [(2000) 10 SCC 307] , Masumsha Hasansha Musalman v. State of Maharashtra, [(2000) 3 SCC 557] , Guljar Hussain v. State of U.P., [1993 Supp (1) SCC 554], K. Ramakrishnan Unnithan v. State of Kerala, [(1999) 3 SCC 309] , Pappu v. State of M.P., [(2006) 7 SCC 391] , Muthu v. State by Inspector of Police, Tamil Nadu, [(2007) 12 Scale 795] . A brief perusal of all these cases would reveal that in all these cases there was a sudden and instantaneous altercation which led to the accused inflicting a single blow to the deceased with a sharp weapon. Hence, there has been conviction under Section 304 Part II as delivering a single blow with a sharp weapon in a sudden fight would not point towards intention to cause death. These cases are clearly distinguishable from the case at hand, purely on the basis of facts. In the present case, there has been no sudden altercation which ensued between the appellant and the deceased in the present case. The deceased called the appellant `gandu following which there was a heated exchange of words between the two, the day before the murder. The next day, however, the appellant concealed a kitchen knife in his lungi and went towards the cot of the deceased and struck the deceased a blow on the right side of the chest, while the deceased was sleeping. The fact that the appellant waited till the next day, went on to procure a deadly weapon like a kitchen knife and then proceeded to strike a blow on the chest of the appellant when he was sleeping, points unerringly towards due deliberation on the part of the appellant to avenge his humiliation at the hands of the appellant. The nature of weapon used and the part of the body where the blow was struck, which was a vital part of the body helps in proving beyond reasonable doubt, the intention of the appellant to cause the death of the deceased. Once these ingredients are proved, it is irrelevant whether there was a single blow struck or multiple blows. This court in the case of State of Rajasthan v. Dhool Singh, [(2004) 12 SCC 546] while dismissing a similar contention has stated that, "It is the nature of injury, the part of body where it is caused, the weapon used in causing such injury which are the indicators of the fact whether the respondent caused the death of the deceased with an intention of causing death or not. In the instant case, it is true that the respondent had dealt one single blow with a sword which is aweapon measuring about 3 ft. in length on a vital part of body, namely, the neck. This act of the respondent though solitary in number had severed sternoclinoid muscle, external jugular vein, internal jugular vein and common carotid artery completely leading to almost instantaneous death. Any reasonable person with any stretch of imagination can come to the conclusion that such injury on such a vital part of the body with aweapon would cause death. Such an injury, in our opinion, not only exhibits the intention of the attacker in causing the death of the victim but also the knowledge of the attacker as to the likely consequence of such attack which could be none other than causing the death of the victim. The reasoning of the High Court as to the intention and knowledge of the respondent in attacking and causing death of the victim, therefore, is wholly erroneous and cannot beIn the aforesaid decision, this Court held that there is no fixed rule that whenever a single blow is inflicted Section 302 would not be attracted.15) It is clear from the above line of cases, that it is necessary to prove first that there was an intention of causing bodily injury; and that the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. From the evidence on record, it is very clear that the appellant intended to cause death. In light of this finding, the evidence on record makes it clear that Section 304 Part II of the IPC will not be attracted. Furtherion asserts that the deceased held his hand out after he was stabbed in the chest. It is very likely that this action on the part of the deceased prevented the appellant from stabbing him multiple number of times. The argument might deserve some merit in case there is a sudden altercation which ensues in the heat of the moment and there is no deliberate planning. In the present case, as stated above there was due deliberation on the part of the appellant and he assaulted the deceased a day after he misbehaved with him. Hence, the contention of the learned counsel that the appellant had no intention to cause death of the deceased has no merit and, accordingly, it is rejected. | 0 | 5,223 | 1,075 | ### Instruction:
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injury, in our opinion, not only exhibits the intention of the attacker in causing the death of the victim but also the knowledge of the attacker as to the likely consequence of such attack which could be none other than causing the death of the victim. The reasoning of the High Court as to the intention and knowledge of the respondent in attacking and causing death of the victim, therefore, is wholly erroneous and cannot be sustained." 12) In the case of Virsa Singh v. State of Punjab, [AIR 1958 SC 465 ], this court while referring to intention to cause death laid down:- "27. Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under s. 300, 3rdly. It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced that the injury was accidental or otherwise unintentional." This court further observed:- "33. It is true that in a given case the enquiry may be linked up with the seriousness of the injury,. For example, if it can be proved, or if the totality of the circumstances justify an inference, that the prisoner only intended a superficial; scratch and that by accident this victim stumbled and fell on the sword or spear that was used, then of course the offence is not murder. But that is not because the prisoner did not intend the injury that he intended to inflict to be as serious as it turned out to be but because he did not intend to inflict the injury in question at all. His intention in such a case would be to inflict a totally different injury. The difference is not one of law but one of fact; and whether the conclusion should be one way or the other is a matter of proof, where necessary, by calling in aid all reasonable inferences of fact in the absence of direct testimony. It is not one for guess-work and fanciful conjecture." 13) In Anil v. State of Haryana, [(2007) 10 SCC 274] , while referring to Virsa Singh (supra) this court laid down:- "19. In Thangaiya v. State of T.N., relying upon a celebrated decision of this Court in Virsa Singh v. State of Punjab 1958 CriLJ 818 , the Division Bench observed:17. These observations of Vivian Bose, J. have become locus classicus. The test laid down by Virsa Singh case for the applicability of Clause "thirdly" is now ingrained in our legal system and has become part of the rule of law. Under Clause "thirdly" of Section 300 IPC. culpable homicide is murder, if both the following conditions are satisfied: i.e. (a) that the act which causes death is done with the intention of causing death or is done with the intention of causing a bodily injury; and (b) that the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. It must be proved that there was an intention to inflict that particular bodily injury which, in the ordinary course of nature, was sufficient to, cause death viz. that the injury found to be present was the injury that was intended to be inflicted.18. Thus, according to the rule laid down in Virsa Singh case even if the intention of the appellant was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be murder. Illustration (c) appended to Section 300 clearly brings out this point." 14) In the aforesaid decision, this Court held that there is no fixed rule that whenever a single blow is inflicted Section 302 would not be attracted.15) It is clear from the above line of cases, that it is necessary to prove first that there was an intention of causing bodily injury; and that the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. From the evidence on record, it is very clear that the appellant intended to cause death. In light of this finding, the evidence on record makes it clear that Section 304 Part II of the IPC will not be attracted. Further PW-1, in his cross-examination asserts that the deceased held his hand out after he was stabbed in the chest. It is very likely that this action on the part of the deceased prevented the appellant from stabbing him multiple number of times. The argument might deserve some merit in case there is a sudden altercation which ensues in the heat of the moment and there is no deliberate planning. In the present case, as stated above there was due deliberation on the part of the appellant and he assaulted the deceased a day after he misbehaved with him. Hence, the contention of the learned counsel that the appellant had no intention to cause death of the deceased has no merit and, accordingly, it is rejected.
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11) The first ingredient is easily solved by referring to the weapon used by the appellant to strike a knife blow to the appellant. The appellant in this instance has used a kitchen knife. A kitchen knife with sharp edges is a dangerous weapon and it is very obvious that the appellant was aware that the use of such a weapon can cause death or serious bodily injury that is likely to cause death. As far as the second ingredient is concerned, the appellants learned counsel contended that the fact that there was one single blow struck, proves that there was no intention to cause death. In support of the plea, reliance is placed on the decisions of this court in the case of Bhera v. State of Rajasthan, [(2000) 10 SCC 225] , Kunhayippu v. State of Kerala, [(2000) 10 SCC 307] , Masumsha Hasansha Musalman v. State of Maharashtra, [(2000) 3 SCC 557] , Guljar Hussain v. State of U.P., [1993 Supp (1) SCC 554], K. Ramakrishnan Unnithan v. State of Kerala, [(1999) 3 SCC 309] , Pappu v. State of M.P., [(2006) 7 SCC 391] , Muthu v. State by Inspector of Police, Tamil Nadu, [(2007) 12 Scale 795] . A brief perusal of all these cases would reveal that in all these cases there was a sudden and instantaneous altercation which led to the accused inflicting a single blow to the deceased with a sharp weapon. Hence, there has been conviction under Section 304 Part II as delivering a single blow with a sharp weapon in a sudden fight would not point towards intention to cause death. These cases are clearly distinguishable from the case at hand, purely on the basis of facts. In the present case, there has been no sudden altercation which ensued between the appellant and the deceased in the present case. The deceased called the appellant `gandu following which there was a heated exchange of words between the two, the day before the murder. The next day, however, the appellant concealed a kitchen knife in his lungi and went towards the cot of the deceased and struck the deceased a blow on the right side of the chest, while the deceased was sleeping. The fact that the appellant waited till the next day, went on to procure a deadly weapon like a kitchen knife and then proceeded to strike a blow on the chest of the appellant when he was sleeping, points unerringly towards due deliberation on the part of the appellant to avenge his humiliation at the hands of the appellant. The nature of weapon used and the part of the body where the blow was struck, which was a vital part of the body helps in proving beyond reasonable doubt, the intention of the appellant to cause the death of the deceased. Once these ingredients are proved, it is irrelevant whether there was a single blow struck or multiple blows. This court in the case of State of Rajasthan v. Dhool Singh, [(2004) 12 SCC 546] while dismissing a similar contention has stated that, "It is the nature of injury, the part of body where it is caused, the weapon used in causing such injury which are the indicators of the fact whether the respondent caused the death of the deceased with an intention of causing death or not. In the instant case, it is true that the respondent had dealt one single blow with a sword which is aweapon measuring about 3 ft. in length on a vital part of body, namely, the neck. This act of the respondent though solitary in number had severed sternoclinoid muscle, external jugular vein, internal jugular vein and common carotid artery completely leading to almost instantaneous death. Any reasonable person with any stretch of imagination can come to the conclusion that such injury on such a vital part of the body with aweapon would cause death. Such an injury, in our opinion, not only exhibits the intention of the attacker in causing the death of the victim but also the knowledge of the attacker as to the likely consequence of such attack which could be none other than causing the death of the victim. The reasoning of the High Court as to the intention and knowledge of the respondent in attacking and causing death of the victim, therefore, is wholly erroneous and cannot beIn the aforesaid decision, this Court held that there is no fixed rule that whenever a single blow is inflicted Section 302 would not be attracted.15) It is clear from the above line of cases, that it is necessary to prove first that there was an intention of causing bodily injury; and that the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. From the evidence on record, it is very clear that the appellant intended to cause death. In light of this finding, the evidence on record makes it clear that Section 304 Part II of the IPC will not be attracted. Furtherion asserts that the deceased held his hand out after he was stabbed in the chest. It is very likely that this action on the part of the deceased prevented the appellant from stabbing him multiple number of times. The argument might deserve some merit in case there is a sudden altercation which ensues in the heat of the moment and there is no deliberate planning. In the present case, as stated above there was due deliberation on the part of the appellant and he assaulted the deceased a day after he misbehaved with him. Hence, the contention of the learned counsel that the appellant had no intention to cause death of the deceased has no merit and, accordingly, it is rejected.
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Biswanath Bhattacharya Vs. Union Of India | An enquiry is limited to such of the assets which the competent authority believes (to start with) are beyond the financial ability of the holder having regard to his known and legitimate sources of income, earnings etc. Connection with the conviction is too remote and, therefore, in our opinion, would not be hit by the prohibition contained under Article 20 of the Constitution of India.41. If a subject acquires property by means which are not legally approved, sovereign would be perfectly justified to deprive such persons of the enjoyment of such ill-gotten wealth. There is a public interest in ensuring that persons who cannot establish that they have legitimate sources to acquire the assets held by them do not enjoy such wealth. Such a deprivation, in our opinion, would certainly be consistent with the requirement of Article 300A and 14 of the Constitution which prevent the State from arbitrarily depriving a subject of his property.42. Whether there is a right to hold property which is the product of crime is a question examined in many jurisdictions. To understand the substance of such examination, we can profitably extract from an article published in the Journal of Financial Crime, 2004 by Anthony Kennedy. [Head of Legal Casework, Northern Ireland for the Assets Recovery Agency in his Article ‘Justifying the civil recovery of criminal proceeds’ published in the Journal of Financial Crime, 2004 Vol.12, Iss.1.] “..It has been suggested that a logical interpretation of Art. 1 of the First Protocol of the European Convention on Human Rights is:‘Everyone is entitled to own whatever property they have (lawfully) acquired …..’ hence implying that they do not have a right under Art. 1 to own property which has been unlawfully acquired. This point was argued in the Irish High Court in Gilligan v The Criminal Assets Bureau, namely that where a defendant is in possession or control over assets which directly or indirectly constitute the proceeds of crime, he has no property rights in those assets and no valid title to them, whether protected by the Irish Constitution or by any other law. A similar view seems to have been expressed earlier in a dissenting opinion in Welch v United Kingdom: ‘in my opinion, the confiscation of property acquired by crime, even without express prior legislation is not contrary to Article 7 of the Convention, nor to Article 1 of the First Protocol.’ This principle has also been explored in US jurisprudence. In United States v. Vanhorn a defendant convicted of fraud and money laundering was not entitled to the return of the seized proceeds since they amounted to contraband which he had no right to possess. In United States v Dusenbery the court held that, because the respondent conceded that he used drug proceeds to purchase a car and other personal property, he had no ownership interest in the property and thus could not seek a remedy against the government’s decision to destroy the property without recourse to formal forfeiture proceedings. The UK government has impliedly adopted this perspective, stating that:‘…. It is important to bear in mind the purpose of civil recovery, namely to establish as a matter of civil law that there is no right to enjoy property that derives from unlawful conduct.” 43. Non-conviction based asset forfeiture model also known as Civil Forfeiture Legislation gained currency in various countries: United States of America, Italy, Ireland, South Africa, UK, Australia and certain provinces of Canada.44. Anthony Kennedy conceptualised the civil forfeiture regime in the following words:- “Civil forfeiture represents a move from a crime and punishment model of justice to a preventive model of justice. It seeks to take illegally obtained property out of the possession of organised crime figures so as to prevent them, first, from using it as working capital for future crimes and, secondly, from flaunting it in such a way as they become role models for others to follow into a lifestyle of acquisitive crime. Civil recovery is therefore not aimed at punishing behaviour but at removing the ‘trophies’ of past criminal behaviour and the means to commit future criminal behaviour. While it would clearly be more desirable if successful criminal proceedings could be instituted, the operative theory is that ‘half a loaf is better than no bread’.” 45. For all the above-mentioned reasons, we are of the opinion that the Act is not violative of Article 20 of the Constitution. Even otherwise as was rightly pointed out by the learned Addl. Solicitor General, in view of its inclusion in the IXth Schedule, the Act is immune from attack on the ground that it violates any of the rights guaranteed under Part III of the Constitution by virtue of the declaration under Article 31-B.46. Now we are required to consider the alternative and last submission i.e., in view of the failure of the High Court to examine the tenability of the order of the forfeiture as confirmed by the appellate tribunal the matter is required to be remitted to the High Court for appropriate consideration. This submission is required to be rejected. We have carefully gone through the copy of the writ petition (a copy of which is available on record) from which the instant appeal arises.47. Except challenging the order of forfeiture on the two legal grounds discussed earlier in this judgement, there is no other ground on which correctness of the order of forfeiture is assailed in the writ petition. For the first time in this appeal, an attempt is made to argue that the conclusions drawn by the competent authority that the properties forfeited are illegally acquired - is not justified on an appropriate appreciation of defence of the appellant. In other words, the appellant seeks reappreciation of the evidence without even an appropriate pleading in the writ petition. It is a different matter that the High Court in exercise of its writ jurisdiction does not normally reappreciate evidence. Looked at any angle, we see no reason to remit the matter to the High Court. | 0[ds]19. We reject the submission of the appellant for the following reasons. Firstly, there is no express statutory requirement to communicate the reasons which led to the issuance of notice under Section 6 of the Act. Secondly, the reasons, though not initially supplied alongwith the notice dated 4.3.1977, were subsequently supplied thereby enabling the appellant to effectively meet the case of the respondents. Thirdly, we are of the opinion that the case on hand is squarely covered by the ratio of Narayanappa case. The appellant could have effectively convinced the respondents by producing the appropriate material that further steps in furtherance to the notice under Section 6 need not be taken. Apart from that, an order of forfeiture is an appealable order where the correctness of the decision under Section 7 to forfeit the properties could be examined. We do not see anything in the ratio of Ajantha Industries case which lays down a universal principle that whenever a statute requires some reasons to be recorded before initiating action, the reasons must necessarily be communicated.20. Now, we deal with the second submission. The Act enables the Government of India to forfeitof any person to whom the Act is made applicable. The Act is made applicable to the persons specified in section 2(2) [Section 2.The provisions of this Act shall apply only to the persons specified in sub-section (2).(2) The persons referred to in sub-section(1) are the following, namely:—(a) every person—(i) who has been convicted under the Sea Customs Act, 1878 (8 of 1878), or the Customs Act, 1962 (52 of 1962), of an offence in relation to goods of a value exceeding one lakh of rupees; orii) who has been convicted under the Foreign Exchange Regulation Act, 1947 (7 of 1947), or the Foreign Exchange Regulation Act, 1973 (46 of 1973), of an offence, the amount of value involved in which exceeds one lakh of rupees; oriii) who have been convicted under the Sea Customs Act, 1878 (8 of 1878), or the Customs Act, 1962 (52 of 1962), has been convicted subsequently under either of those Acts; oriv) who having been convicted under the Foreign Exchange Regulation Act, 1947 (7 of 1947), or the Foreign Exchange Regulation Act, 1973 (46 of 1973), has been convicted subsequently under either of those Acts;(b) every person in respect of whom an order of detention has been made under the Conservation of Foreign Exchange and prevention of Smuggling Activities Act, 1974 (52 of 1974):Provided that—i) such order of detention being an order to which the provisions of section 9 or section 12A of the said Act do not apply, has not been revoked on the report of the Advisory Board under section 8 of the said Act or before the receipt of the report of the Advisory Board or before making a reference to the Advisory Board; orii) such order of detention being an order to which the provisions of section 9 of the said Act apply, has not been revoked before the expiry of the time for, or on the basis of, the review under sub-section (3) of section 9 or on the report of the Advisory Board under section 8, read with sub- section (2) of section 9 of the said Act; oriii) such order of detention, being an order to which the provisions of section 12A of the said Act apply, has not been revoked before the expiry of the time for, or on the basis of, the first review under sub-section (3) of that section, or on the basis of the report of the Advisory Board under section 8, read with sub-section (6) of section 12A, of that Act; oriv) such order of detention has not been set aside by a court of competent jurisdiction;c) every person who is a relative of a person referred to in clause (a) or clause (b);d) every associate of person referred to in clause (a) or clause (b);e) any holder of any property which was at any time previously held by a person referred to in clause (a) or clause (b) unless the present holder or, as the case may be, any one who held such property after such person and before the present holder, is or was a transferee in good faith for adequate consideration.Explanation 1.— For the purposes of sub-clause (i) of clause(a), the value of any goods in relation to which a person has beenconvicted of an offence shall be the wholesale price of the goods in theordinary course of trade in India as on the date of the commission of theoffence.Explanation 2.— For the purpose of clause ©,inrelation to a person,spouse of the person;ii) brother or sister of the person;iii) brother or sister of the spouse of person;iv) any lineal ascendant or descendant of the person;v) any lineal ascendant or descendant of the spouse of the person;vi) spouse of a person referred to in clause (ii), clause(iii), clause (iv) or clause (v);vii) any lineal descendant of a person referred to inor clause (iii).Explanation 3.— For the purposes of clause (d),in relation to a person,any individual who had been or is residing in the residential premises (including out houses) of such person;ii) any individual who had been or is managing the affairs or keeping the accounts of such person;iii) any association of persons, body of individuals, partnership firms, or private company within the meaning of the Companies Act, 1956 (1 of 1956), of which such person had been or is a member, partner or director;iv) any individual who had been or is a member, partner or director of an association of persons, body of individuals, partnership firm, or private company within the meaning of the Companies when such person had been or is a member, partner or director of such association, body, partnership firm of a private company;v) any person who had been or is managing the affairs, or keeping the accounts, of any association of persons, body of individuals, partnership firm or private company referred to in clause (iii);vi) the trustee of any trust,the trust has been created by such person; orb) the value of the assets contributed by such person (including the value of the assets, if any, contributed by him earlier) to the trust amounts, on the date on which the contribution is made, to not less than twenty per cent, of the value of the assets of the trust on that date;vii) where the competent authority, for reasons to be recorded in writing considers that any properties of such person are held on his behalf by any other person, such other person.Explanation 4.— For the avoidance of doubt, it is hereby provided that the question whether any person is a person to whom the provisions of this Act apply may be determined with reference to any facts, circumstances or events including any conviction or detention which occurred or took place before the commencement of this Act.]. Five categories of persons are covered thereunder. Clause (a) – persons who have been convicted under various enactments referred to therein; clause (b) - persons in respect of whom an order of detention has been made under the COFEPOSA (subject to certain conditions/exceptions the details of which are not necessary for our purpose); clause (c) – persons who are relatives of persons referred to in clause (a) or clause (b). Expressionis itself explained in explanation 2. Clause (d) – every associate of persons referred to in clause (a) or clause (b). Once again the expressionis explained under explanation 3 to sub-section (2). Clause (e) – subsequent holders of property which at some point of time belonged to persons referred to either in clause (a) or clause (b).Section 4 makes it unlawful (for any person to whom the Act applies) to hold any illegally acquired property and it further declares that such property shall be liable to be forfeited to the Central Government (following the procedure prescribed under the Act). The procedure is contained under sections 6 and 7 of the Act. Section 8 prescribes the special rule of evidence which shifts the burden of proving that any property specified in the notice under section 6 is not illegally acquired property of the noticee. Section 6 inter alia postulates that having regard to the value of the property held by any person (to whom the Act applies) and his known sources of income, if theed under section 5) has reason to believe that such properties arethe competent authority is authorized to call upon the holder of the property tothe source of his income etc. which enabled the acquisition of such property along with necessary evidence. It also authorizes the competent authority to call upon the noticee to show cause as to why all or any of such properties mentioned in the notice should not be declared illegally acquired properties and be forfeited to the Central Government. Section 7 provides for a reasonable opportunity of being heard after the receipt of response to the notice under section 6 to the noticee and requires the competent authority to record a finding whether all or any of the properties in question are illegally acquired properties. Section 7 also provides for certain incidental matters the details of which are not necessary for the present purpose.22. Expressionis defined in elaborate terms under the Act [Section 3(c)in relation to any person to whom this Act applies,any property acquired by such person, whether before or after the commencement of this Act, wholly or partly out of or by means of any income, earnings or assets derived or obtained from or attributable to any activity prohibited by or under any law for the time being in force relating to any matter in respect of which Parliament has power to make laws; orii) any property acquired by such person, whether before or after the commencement of this Act, wholly or partly out of or by means of any income, earnings or assets in respect of which any such law has been contravened; oriii) any property acquired by such person, whether before or after the commencement of this Act, wholly or partly out of or by means of any income, earnings or assets the source of which cannot be proved and which cannot be shown to be attributable to any act or thing done in respect of any matter in relation to which Parliament has no power to make laws; oriv) any property acquired by such person, whether before or after commencement of this Act, for a consideration, or by any means, wholly or partly traceable to any property referred to in sub-clauses (i) to (ii) or the income or earnings from such property; and includes—tA) any property held by such person which would have been, in relation to any previous holder thereof, illegally acquired property under this clause if such previous holder had not ceased to hold it, unless such person or any other person who held the property at any time after such previous holder or, where there are two or more such previous holders, the last of such previous holders is or was a transferee in good faith for adequate consideration;B) any property acquired by such person, whether before or after the commencement of this Act, for a consideration, or by any means, wholly or partly traceable to any property falling under item (A), or the income or earnings therefrom.]. Broadly speaking the definition covers two types of properties:1) acquired by the income or earnings; and2) assets derived or obtained from or attributable to any activity which is prohibited by or under a law in force. Such law must be a law with respect to which parliament has the power to make law. A complete analysis of the definition in all its facets may not be necessary for our purpose.From the language and the scheme of the Act it does not appear that the application of the Act is limited to persons who either suffered a conviction under one of the acts specified in section 2(2)(a) the Act or detained under the COFEPOSA subsequent to the commencement of the Act in question. On the other hand, explanation 4 to section 2 expressly declares as4.—For the avoidance of doubt, it is hereby provided that the question whether any person is a person to whom the provisions of this Act apply may be determined with reference to any facts, circumstances or events (including any conviction or detention which occurred or took place before the commencement of thisfrom that we have already taken note of the fact that there are other categories of persons to whom the Act applies.24. The appellant happens to be a person to whom the Act applies. He was detained under the provisions of the COFEPOSA. However, such a detention was anterior to the commencement of the Act, which came into force on 25th January 1976, while the detention order was passed on 19th December 1974. It appears from the judgment under appeal that the appellant was eventually set at liberty in 1977.25. Section 7(3) of the Act provides for forfeiture of the illegally acquired property of the persons to whom the Act is made applicable after an appropriate enquiry contemplated under Sections 6 and 7 of the Act. In other words, the Act provides for the deprivation of the (illegally acquired) property of the persons to whom the Act applies. The question which we were called upon to deal with is whether such a deprivation is consistent with Article 20 [20. Protection in respect of conviction forNo personshall be convicted of any offence except for violation of a law in force atthe time of the commission of the Act charged as an offence, nor besubjected to a penalty greater than that which might have been inflictedunder the law in force at the time of the commission of the offence.(2) No person shall be prosecuted and punished for the same offence more than once.(3) No person accused of any offence shall be compelled to be awitness against himself.] of the Constitution of India in the specific factual setting of the case coupled with the explanation 4 to section 2 which reads asr the avoidance of doubt, it is hereby provided that the question whether any person is a person to whom the provisions of this Act apply may be determined with reference to any facts, circumstances or events (including any conviction or detention which occurred or took place before the commencement of thisanswer to the question depends upon whether such deprivation is a penalty within the meaning of the said expression occurring in Article 20.26. Article 20 contains one of the most basic guarantees to the subjects of the Republic of India. The Article in so far as is relevant for our purpose stipulates two things:-? That no person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence; and? That no person shall be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.27. It is a well settled principle of constitutional law that sovereign legislative bodies can make laws with retrospective operation; and can make laws whose operation is dependent upon facts or events anterior to the making of the law. However, criminal law is excepted from such general Rule, under another equally well settled principle of constitutional law, i.e. no ex post facto legislation is permissible with respect to criminal law. Article 20 contains such exception to the general authority of the sovereign legislature functioning under the Constitution to make retrospective or retroactive laws.28. The submission of the appellant is that since the Act provides for a forfeiture of the property of the appellant on the ground that the appellant was detained under the COFEPOSA, the proposed forfeiture is nothing but a penalty within the meaning of the expression under Article 20 of the Constitution. Such an inference is inevitable in the light of the definition ofwhich by definition (under the Act) is property acquired eitheror by meansany income, earningsd from or attributable to any activity prohibited by or under any lawOn the other hand, if the forfeiture contemplated by the Act is not treated as a penalty for the alleged violation of law on the part of the appellant, it would be plain confiscation of the property of the appellant by the State without any factual justification or the constitutional authority.29. The learned counsel for the appellant further argued that the forfeiture contemplated under the Act whether based on proven guilt or suspicion of involvement in a certain specified activity prohibited by the Customs Act can only be aattracting the prohibition of Article 20 of the Constitution of India. It is submitted that under Section 53 [Section 53. Punishments.—The punishments to which offenders are liable under the provisions of this Code are—First—Death;Secondly.—Imprisonment for life;Thirdly.— OmittedFourthly.—Imprisonment, which is of two descriptions, namely.—(1) Rigorous, that is, with hard labour;(2) Simple;Fifthly.—Forfeiture of property;Sixthly.—Fine.] of the Indian Penal Code, forfeiture of property is one of the prescribed punishments for some of the offences covered under the Indian Penal Code.30. Learned counsel for the appellant placing reliance on R.S. Joshi, Sales Tax Officer, Gujarat and Others v. Ajit Mills Ltd. and Another, (1977) 4 SCC 98 submitted that a Constitution Bench of this Court also opined the expressiona penalty for breach of a prohibitory[18. Coming towhat is the true character of aIs it punitive in infliction, or merely another form of exaction of money by one from another? If it is penal, it falls within implied powers. If it is an act of mere transference of money from the dealer to the State, then it falls outside the legislative entry. Such is the essence of the decisions which we will presently consider. There was a contention that the expressiondid not denote a penalty. This, perhaps, may have to be decided in the specific setting of a statute. But, speaking generally, and having in mind the object of Section 37 read with Section 46, we are inclined to the view that forfeiture has a punitive impact.Legal Dictionary states thato lose, or lose the right to, by, some error, fault, offence oro incur a, as judicially annotated, ispunishment annexed by law to some illegal act or negligence . . .g imposed as a punishment for an offence orThe word, in this sense, is frequently associated with the wordLegal Dictionary,The termsare often used loosely, and even confusedly : but when a discrimination is made, the wordis found to be generic in its character, including both fine and forfeiture. Ais a pecuniary penalty, and is commonly (perhaps always) to be collected by suit in some form. Ais a penalty by which one loses his rights and interest in his property.More explicitly, the U.S. Supreme Court has explained the concept ofin the context of statutory construction. Chief Justice Taney, in the State of Maryland v. Baltimore & Ohio RR Co., 11 L.Ed. 714, 722 observeda provision, as in this case, that the party shall forfeit a particular sum, in case he does not perform an act required by law, has always, in the construction of statutes, been regarded not as a contract with the delinquent party, but as the punishment for an offence. Undoubtedly, in the case of individuals, the word forfeit is construed to be the language of contract, because contract is the only mode in which one person can become liable to pay a penalty to another for breach of duty, or the failure to perform an obligation. In legislative proceedings, however, the construction is otherwise, and a forfeiture is always to be regarded as a punishment inflicted for a violation of some duty enjoined upon the party by law ; and such, very clearly, is the meaning of the word in the act in question.The same connotation has been imparted by our Court too. A Benchhas held [Bankura Municipality v.Lalji Raja & Sons, 1953 Cri LJ 1101]to the dictionary meaning of the wordthe loss or the deprivation of goods has got to be in consequence of a crime, offence or breach of engagement or has to be by way of penalty of the transgression or a punishment for an offence. Unless the loss or deprivation of the goods is by way of a penalty or punishment for a crime, offence or breach of engagement it would not come within the definition ofmust bear the same meaning ofa penalty for breach of a prohibitorydirection. The fact that there is arithmetical identity, assuming it to be so, between the figures of the illegal collections made by the dealers and the amounts forfeited to the State cannot create a conceptual confusion that what is provided is not punishment but a transference of funds. If this view be correct, and we hold so, the legislature, by inflicting the forfeiture, does not go outside the crease when it hits out against the dealer and deprives him, by the penalty of the law, of the amount illegally gathered from the customers. The Criminal Procedure Code, Customs & Excise Laws and several other penal statutes in India have used diction which accepts forfeiture as a kind of penalty. When discussing the rulings of this Court we will explore whether this true nature ofis contradicted by anything we can find in Sections 37(1), 46 or 63. Even here we may reject the notion that a penalty or a punishment cannot be cast in the form of an absolute or no-fault liability but must be preceded by mens rea. The classical view thatmens rea, nohas long ago been eroded and several laws in India and abroad, especially regarding economic crimes and departmental penalties, have created severe punishments even where the offences have been defined to exclude mens rea. Therefore, the contention that Section 37(1) fastens a heavy liability regardless of fault has no force in depriving the forfeiture of the character of penalty.] | 0 | 10,717 | 4,219 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
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An enquiry is limited to such of the assets which the competent authority believes (to start with) are beyond the financial ability of the holder having regard to his known and legitimate sources of income, earnings etc. Connection with the conviction is too remote and, therefore, in our opinion, would not be hit by the prohibition contained under Article 20 of the Constitution of India.41. If a subject acquires property by means which are not legally approved, sovereign would be perfectly justified to deprive such persons of the enjoyment of such ill-gotten wealth. There is a public interest in ensuring that persons who cannot establish that they have legitimate sources to acquire the assets held by them do not enjoy such wealth. Such a deprivation, in our opinion, would certainly be consistent with the requirement of Article 300A and 14 of the Constitution which prevent the State from arbitrarily depriving a subject of his property.42. Whether there is a right to hold property which is the product of crime is a question examined in many jurisdictions. To understand the substance of such examination, we can profitably extract from an article published in the Journal of Financial Crime, 2004 by Anthony Kennedy. [Head of Legal Casework, Northern Ireland for the Assets Recovery Agency in his Article ‘Justifying the civil recovery of criminal proceeds’ published in the Journal of Financial Crime, 2004 Vol.12, Iss.1.] “..It has been suggested that a logical interpretation of Art. 1 of the First Protocol of the European Convention on Human Rights is:‘Everyone is entitled to own whatever property they have (lawfully) acquired …..’ hence implying that they do not have a right under Art. 1 to own property which has been unlawfully acquired. This point was argued in the Irish High Court in Gilligan v The Criminal Assets Bureau, namely that where a defendant is in possession or control over assets which directly or indirectly constitute the proceeds of crime, he has no property rights in those assets and no valid title to them, whether protected by the Irish Constitution or by any other law. A similar view seems to have been expressed earlier in a dissenting opinion in Welch v United Kingdom: ‘in my opinion, the confiscation of property acquired by crime, even without express prior legislation is not contrary to Article 7 of the Convention, nor to Article 1 of the First Protocol.’ This principle has also been explored in US jurisprudence. In United States v. Vanhorn a defendant convicted of fraud and money laundering was not entitled to the return of the seized proceeds since they amounted to contraband which he had no right to possess. In United States v Dusenbery the court held that, because the respondent conceded that he used drug proceeds to purchase a car and other personal property, he had no ownership interest in the property and thus could not seek a remedy against the government’s decision to destroy the property without recourse to formal forfeiture proceedings. The UK government has impliedly adopted this perspective, stating that:‘…. It is important to bear in mind the purpose of civil recovery, namely to establish as a matter of civil law that there is no right to enjoy property that derives from unlawful conduct.” 43. Non-conviction based asset forfeiture model also known as Civil Forfeiture Legislation gained currency in various countries: United States of America, Italy, Ireland, South Africa, UK, Australia and certain provinces of Canada.44. Anthony Kennedy conceptualised the civil forfeiture regime in the following words:- “Civil forfeiture represents a move from a crime and punishment model of justice to a preventive model of justice. It seeks to take illegally obtained property out of the possession of organised crime figures so as to prevent them, first, from using it as working capital for future crimes and, secondly, from flaunting it in such a way as they become role models for others to follow into a lifestyle of acquisitive crime. Civil recovery is therefore not aimed at punishing behaviour but at removing the ‘trophies’ of past criminal behaviour and the means to commit future criminal behaviour. While it would clearly be more desirable if successful criminal proceedings could be instituted, the operative theory is that ‘half a loaf is better than no bread’.” 45. For all the above-mentioned reasons, we are of the opinion that the Act is not violative of Article 20 of the Constitution. Even otherwise as was rightly pointed out by the learned Addl. Solicitor General, in view of its inclusion in the IXth Schedule, the Act is immune from attack on the ground that it violates any of the rights guaranteed under Part III of the Constitution by virtue of the declaration under Article 31-B.46. Now we are required to consider the alternative and last submission i.e., in view of the failure of the High Court to examine the tenability of the order of the forfeiture as confirmed by the appellate tribunal the matter is required to be remitted to the High Court for appropriate consideration. This submission is required to be rejected. We have carefully gone through the copy of the writ petition (a copy of which is available on record) from which the instant appeal arises.47. Except challenging the order of forfeiture on the two legal grounds discussed earlier in this judgement, there is no other ground on which correctness of the order of forfeiture is assailed in the writ petition. For the first time in this appeal, an attempt is made to argue that the conclusions drawn by the competent authority that the properties forfeited are illegally acquired - is not justified on an appropriate appreciation of defence of the appellant. In other words, the appellant seeks reappreciation of the evidence without even an appropriate pleading in the writ petition. It is a different matter that the High Court in exercise of its writ jurisdiction does not normally reappreciate evidence. Looked at any angle, we see no reason to remit the matter to the High Court.
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is inevitable in the light of the definition ofwhich by definition (under the Act) is property acquired eitheror by meansany income, earningsd from or attributable to any activity prohibited by or under any lawOn the other hand, if the forfeiture contemplated by the Act is not treated as a penalty for the alleged violation of law on the part of the appellant, it would be plain confiscation of the property of the appellant by the State without any factual justification or the constitutional authority.29. The learned counsel for the appellant further argued that the forfeiture contemplated under the Act whether based on proven guilt or suspicion of involvement in a certain specified activity prohibited by the Customs Act can only be aattracting the prohibition of Article 20 of the Constitution of India. It is submitted that under Section 53 [Section 53. Punishments.—The punishments to which offenders are liable under the provisions of this Code are—First—Death;Secondly.—Imprisonment for life;Thirdly.— OmittedFourthly.—Imprisonment, which is of two descriptions, namely.—(1) Rigorous, that is, with hard labour;(2) Simple;Fifthly.—Forfeiture of property;Sixthly.—Fine.] of the Indian Penal Code, forfeiture of property is one of the prescribed punishments for some of the offences covered under the Indian Penal Code.30. Learned counsel for the appellant placing reliance on R.S. Joshi, Sales Tax Officer, Gujarat and Others v. Ajit Mills Ltd. and Another, (1977) 4 SCC 98 submitted that a Constitution Bench of this Court also opined the expressiona penalty for breach of a prohibitory[18. Coming towhat is the true character of aIs it punitive in infliction, or merely another form of exaction of money by one from another? If it is penal, it falls within implied powers. If it is an act of mere transference of money from the dealer to the State, then it falls outside the legislative entry. Such is the essence of the decisions which we will presently consider. There was a contention that the expressiondid not denote a penalty. This, perhaps, may have to be decided in the specific setting of a statute. But, speaking generally, and having in mind the object of Section 37 read with Section 46, we are inclined to the view that forfeiture has a punitive impact.Legal Dictionary states thato lose, or lose the right to, by, some error, fault, offence oro incur a, as judicially annotated, ispunishment annexed by law to some illegal act or negligence . . .g imposed as a punishment for an offence orThe word, in this sense, is frequently associated with the wordLegal Dictionary,The termsare often used loosely, and even confusedly : but when a discrimination is made, the wordis found to be generic in its character, including both fine and forfeiture. Ais a pecuniary penalty, and is commonly (perhaps always) to be collected by suit in some form. Ais a penalty by which one loses his rights and interest in his property.More explicitly, the U.S. Supreme Court has explained the concept ofin the context of statutory construction. Chief Justice Taney, in the State of Maryland v. Baltimore & Ohio RR Co., 11 L.Ed. 714, 722 observeda provision, as in this case, that the party shall forfeit a particular sum, in case he does not perform an act required by law, has always, in the construction of statutes, been regarded not as a contract with the delinquent party, but as the punishment for an offence. Undoubtedly, in the case of individuals, the word forfeit is construed to be the language of contract, because contract is the only mode in which one person can become liable to pay a penalty to another for breach of duty, or the failure to perform an obligation. In legislative proceedings, however, the construction is otherwise, and a forfeiture is always to be regarded as a punishment inflicted for a violation of some duty enjoined upon the party by law ; and such, very clearly, is the meaning of the word in the act in question.The same connotation has been imparted by our Court too. A Benchhas held [Bankura Municipality v.Lalji Raja & Sons, 1953 Cri LJ 1101]to the dictionary meaning of the wordthe loss or the deprivation of goods has got to be in consequence of a crime, offence or breach of engagement or has to be by way of penalty of the transgression or a punishment for an offence. Unless the loss or deprivation of the goods is by way of a penalty or punishment for a crime, offence or breach of engagement it would not come within the definition ofmust bear the same meaning ofa penalty for breach of a prohibitorydirection. The fact that there is arithmetical identity, assuming it to be so, between the figures of the illegal collections made by the dealers and the amounts forfeited to the State cannot create a conceptual confusion that what is provided is not punishment but a transference of funds. If this view be correct, and we hold so, the legislature, by inflicting the forfeiture, does not go outside the crease when it hits out against the dealer and deprives him, by the penalty of the law, of the amount illegally gathered from the customers. The Criminal Procedure Code, Customs & Excise Laws and several other penal statutes in India have used diction which accepts forfeiture as a kind of penalty. When discussing the rulings of this Court we will explore whether this true nature ofis contradicted by anything we can find in Sections 37(1), 46 or 63. Even here we may reject the notion that a penalty or a punishment cannot be cast in the form of an absolute or no-fault liability but must be preceded by mens rea. The classical view thatmens rea, nohas long ago been eroded and several laws in India and abroad, especially regarding economic crimes and departmental penalties, have created severe punishments even where the offences have been defined to exclude mens rea. Therefore, the contention that Section 37(1) fastens a heavy liability regardless of fault has no force in depriving the forfeiture of the character of penalty.]
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M/S. Revajeetu Builders & Developers Vs. M/S. Narayanaswamy & Sons | SCC 869 ), A sued B in his individual name but afterward soughts leave to amend the plaint to sue as the proprietor of a Hindu Joint Family business. The amendment was granted and the suit was decreed. The High Court, however, reversed the decree observing that the action was brought by a `non-existing person. 54. Reversing the order of the High Court, this Court (per Shah, J., as he then was) made the following oft-quoted observations: "Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Court always gives leave to amend the pleading of a party, unless it is satisfied that the party Applying, was acting mala fide, or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs. However negligent or careless may have been the first omission, and, however late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side." (Emphasis Added) 55. In Ganga Bai v. Vijay Kumar ((1974) 2 SCC 393 ), an appeal was filed against a mere finding recorded by the trial court. After a lapse of more than seven years, amendment was sought by which a preliminary decree was challenged which was granted by the High Court by a laconic order. 56. Setting aside the order of the High Court, this Court stated: "The preliminary decree had remained unchallenged since September 1958 and by lapse of time a valuable right had accrued in favour of the decree-holder. The power to allow an amendment is undoubtedly wide and may at any stage be appropriately exercised in the interest of justice, the law of limitation notwithstanding. But the exercise of such far-reaching discretionary powers is governed by judicial considerations and wider the discretion, greater ought to be the care and circumspection on the part of the court." 57. In Haridas Aildas Thadani & Others v. Godraj Rustom Kermani ((1984) 1 SCC 668 ) this Court said that "It is well settled that the court should be extremely liberal in granting prayer for amendment of pleading unless serious injustice or irreparable loss is caused to the other side. It is also clear that a revisional court ought not to lightly interfere with a discretion exercised in allowing amendment in absence of cogent reasons or compelling circumstances. 58. In B. K. Narayana Pillai v. Parameshwaram Pillai & Another ((2000) 1 SCC 712 ), a suit was filed by A for recovery of possession from B alleging that B was a licensee. In the written statement B contended that he was a lessee. After the trial began, he applied for amendment of the written statement by adding an alternative plea that in case B is held to be a licensee, the licence was irrevocable. The amendment was refused. 59. Setting aside the orders refusing amendment, this Court stated: "The purpose and object of Order 6 Rule 17 CPC is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines laid down by various High Courts and the Supreme Court. It is true that the amendment cannot be claimed as a matter of right and under all circumstances. But it is equally true that the courts while deciding such prayers should not adopt hypertechnical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper the courts in, the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled for multiplicity of litigation." 60. In Suraj Prakash Bhasin v. Raj Rani Bhasin & Others ((1981) 3 SCC 652 ), this Court held that liberal principles which guide the exercise of discretion in allowing amendment are that multiplicity of proceedings should be avoided, that amendments which do not totally alter the character of an action should be readily granted while care should be taken to see that injustice and prejudice of an irremediable character are not inflicted on the opposite party under pretence of amendment, that one distinct cause of action should not be substituted for anther and that the subject- matter of the suit should not be changed by amendment. WHETHER AMENDMENT IS NECESSARY TO DECIDE REAL CONTROVERSY: 61. The first condition which must be satisfied before the amendment can be allowed by the court is whether such amendment is necessary for the determination of the real question in controversy. If that condition is not satisfied, the amendment cannot be allowed. This is the basic test which should govern the courts discretion in grant or refusal of the amendment. NO PREJUDICE OR INJUSTICE TO OTHER PARTY: 62. The other important condition which should govern the discretion of the Court is the potentiality of prejudice or injustice which is likely to be caused to other side. Ordinarily, if other side is compensated by costs, then there is no injustice but in practice hardly any court grants actual costs to the opposite side. 63. The Courts have very wide discretion in the matter of amendment of pleadings but courts powers must be exercised judiciously and with great care. 64. In Ganga Bais case (supra), this Court has rightly observed: "The power to allow an amendment is undoubtedly wide and may at any stage be appropriately exercised in the interest of justice, the law of limitation notwithstanding. But the exercise of such far-reaching discretionary powers is governed by judicial considerations and wider the discretion, greater ought to be the care and circumspection on the part of the court." COSTS: | 1[ds]17. The original plaint expressly so avers and relies on section 65 of the Contract Act clearly admitting that the sale deed has become void. This admission is now sought to be got rid off and the sale deed is sought to be asserted as valid. It was submitted that the appellant cannot, therefore, seek any amendment of the plaint relying on the circumstances as to the earlier decision having been overruled by seeking amendment of the plaint. This has the effect of changing the character of the suit and also omitting an admission made24. In the same judgment of Usha Balashaheb Swami (supra), the Court dealt with a number of judgments of this Court and laid down that the prayer for amendment of the plaint and a prayer for amendment of the written statement stand on different footings. The general principle that amendment of pleadings cannot be allowed so as to alter materially or substitute the cause of action or the nature of claim applies to amendments to plaint. It has no counterpart in the principles relating to amendment of the written statement. Therefore, addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement would not be objectionable while adding, altering or substituting a new cause of action in the plaint may be objectionable29. In our considered view, Order VI Rule 17 is one of the important provisions of the CPC, but we have no hesitation in also observing that this is one of the most misused provision of the Code for dragging the proceedings indefinitely, particularly in the Indian courts which are otherwise heavily overburdened with the pending cases. All Civil Courts ordinarily have a long list of cases, therefore, the Courts are compelled to grant long dates which causes delay in disposal of the cases. The applications for amendment lead to further delay in disposal of the cases31. In a recently published unique, unusual and extremely informative book "Justice, Courts and Delays", the author Arun Mohan, a Senior Advocate of the High Court of Delhi and of this Court, from his vast experience as a Civil Lawyer observed that 80% applications under Rule VI Order 17 are filed with the sole objective of delaying the proceedings, whereas 15% application are filed because of lackadaisical approach in the first instance, and 5% applications are those where there is actual need of amendment. His experience further revealed that out of these 100 applications, 95 applications are allowed and only 5 (even may be less) are rejected. According to him, a need for amendment of pleading should arise in a few cases, and if proper rules with regard to pleadings are put into place, it would be only in rare cases. Therefore, for allowing amendment, it is not just costs, but the delays caused thereby, benefit of such delays, the additional costs which had to be incurred by the victim of the amendment. The Court must scientifically evaluate the reasons, purpose and effect of the amendment and all these factors must be taken into consideration while awarding the costs32. To curtail delay in disposal of cases, in 1999 the Legislation altogether deleted Rule 17 which meant that amendment of pleading would no longer have been permissible. But immediately after the deletion there was widespread uproar and in 2002 Rule 17 was restored, but added a proviso. That proviso applies only after the trial has commenced. Prior to that stage, the situation remains as it was. According to the view of the learned author Arun Mohan as observed in his book, although the proviso has improved the position, the fact remains that amendments should be permissible, but only if a sufficient ground therefore is made out, and further, only on stringent terms. To that end, the rule needs to be further tightened33. The general principle is that courts at any stage of the proceedings may allow either party to alter or amend the pleadings in such manner and on such terms as may be just and all those amendments must be allowed which are imperative for determining the real question in controversy between the parties. The basic principles of grant or refusal of amendment articulated almost 125 years ago are still considered to be correct statement of law and our courts have been following the basic principles laid down in those cases45. Though the Court noticed `considerable force in the objection, keeping in view the prayer in the amendment which was not `foreign to the scope of the suit and all necessary facts were on record, it allowed the amendment47. Dismissing the appeal and confirming the order of the High Court, this Court observed that the discretionary power of amendment was not exercised by the High Court on wrong principles. There was merely a defect in the pleading which was removed by the amendment. The quality and quantity of the reliefs sought remained the same. Since the amendment did not introduce a new case, the defendant was not taken by surprise61. The first condition which must be satisfied before the amendment can be allowed by the court iswhether such amendment is necessary for the determination of the real question in controversy.If that condition is not satisfied, the amendment cannot be allowed. This is the basic test which should govern the courts discretion in grant or refusal of the amendment62. The other important condition which should govern the discretion of the Court is the potentiality of prejudice or injustice which is likely to be caused to other side. Ordinarily, if other side is compensated by costs, then there is no injustice but in practice hardly any court grants actual costs to the opposite side63. The Courts have very wide discretion in the matter of amendment of pleadings but courts powers must be exercised judiciously and with great care. | 1 | 7,880 | 1,073 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
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SCC 869 ), A sued B in his individual name but afterward soughts leave to amend the plaint to sue as the proprietor of a Hindu Joint Family business. The amendment was granted and the suit was decreed. The High Court, however, reversed the decree observing that the action was brought by a `non-existing person. 54. Reversing the order of the High Court, this Court (per Shah, J., as he then was) made the following oft-quoted observations: "Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Court always gives leave to amend the pleading of a party, unless it is satisfied that the party Applying, was acting mala fide, or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs. However negligent or careless may have been the first omission, and, however late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side." (Emphasis Added) 55. In Ganga Bai v. Vijay Kumar ((1974) 2 SCC 393 ), an appeal was filed against a mere finding recorded by the trial court. After a lapse of more than seven years, amendment was sought by which a preliminary decree was challenged which was granted by the High Court by a laconic order. 56. Setting aside the order of the High Court, this Court stated: "The preliminary decree had remained unchallenged since September 1958 and by lapse of time a valuable right had accrued in favour of the decree-holder. The power to allow an amendment is undoubtedly wide and may at any stage be appropriately exercised in the interest of justice, the law of limitation notwithstanding. But the exercise of such far-reaching discretionary powers is governed by judicial considerations and wider the discretion, greater ought to be the care and circumspection on the part of the court." 57. In Haridas Aildas Thadani & Others v. Godraj Rustom Kermani ((1984) 1 SCC 668 ) this Court said that "It is well settled that the court should be extremely liberal in granting prayer for amendment of pleading unless serious injustice or irreparable loss is caused to the other side. It is also clear that a revisional court ought not to lightly interfere with a discretion exercised in allowing amendment in absence of cogent reasons or compelling circumstances. 58. In B. K. Narayana Pillai v. Parameshwaram Pillai & Another ((2000) 1 SCC 712 ), a suit was filed by A for recovery of possession from B alleging that B was a licensee. In the written statement B contended that he was a lessee. After the trial began, he applied for amendment of the written statement by adding an alternative plea that in case B is held to be a licensee, the licence was irrevocable. The amendment was refused. 59. Setting aside the orders refusing amendment, this Court stated: "The purpose and object of Order 6 Rule 17 CPC is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines laid down by various High Courts and the Supreme Court. It is true that the amendment cannot be claimed as a matter of right and under all circumstances. But it is equally true that the courts while deciding such prayers should not adopt hypertechnical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper the courts in, the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled for multiplicity of litigation." 60. In Suraj Prakash Bhasin v. Raj Rani Bhasin & Others ((1981) 3 SCC 652 ), this Court held that liberal principles which guide the exercise of discretion in allowing amendment are that multiplicity of proceedings should be avoided, that amendments which do not totally alter the character of an action should be readily granted while care should be taken to see that injustice and prejudice of an irremediable character are not inflicted on the opposite party under pretence of amendment, that one distinct cause of action should not be substituted for anther and that the subject- matter of the suit should not be changed by amendment. WHETHER AMENDMENT IS NECESSARY TO DECIDE REAL CONTROVERSY: 61. The first condition which must be satisfied before the amendment can be allowed by the court is whether such amendment is necessary for the determination of the real question in controversy. If that condition is not satisfied, the amendment cannot be allowed. This is the basic test which should govern the courts discretion in grant or refusal of the amendment. NO PREJUDICE OR INJUSTICE TO OTHER PARTY: 62. The other important condition which should govern the discretion of the Court is the potentiality of prejudice or injustice which is likely to be caused to other side. Ordinarily, if other side is compensated by costs, then there is no injustice but in practice hardly any court grants actual costs to the opposite side. 63. The Courts have very wide discretion in the matter of amendment of pleadings but courts powers must be exercised judiciously and with great care. 64. In Ganga Bais case (supra), this Court has rightly observed: "The power to allow an amendment is undoubtedly wide and may at any stage be appropriately exercised in the interest of justice, the law of limitation notwithstanding. But the exercise of such far-reaching discretionary powers is governed by judicial considerations and wider the discretion, greater ought to be the care and circumspection on the part of the court." COSTS:
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17. The original plaint expressly so avers and relies on section 65 of the Contract Act clearly admitting that the sale deed has become void. This admission is now sought to be got rid off and the sale deed is sought to be asserted as valid. It was submitted that the appellant cannot, therefore, seek any amendment of the plaint relying on the circumstances as to the earlier decision having been overruled by seeking amendment of the plaint. This has the effect of changing the character of the suit and also omitting an admission made24. In the same judgment of Usha Balashaheb Swami (supra), the Court dealt with a number of judgments of this Court and laid down that the prayer for amendment of the plaint and a prayer for amendment of the written statement stand on different footings. The general principle that amendment of pleadings cannot be allowed so as to alter materially or substitute the cause of action or the nature of claim applies to amendments to plaint. It has no counterpart in the principles relating to amendment of the written statement. Therefore, addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement would not be objectionable while adding, altering or substituting a new cause of action in the plaint may be objectionable29. In our considered view, Order VI Rule 17 is one of the important provisions of the CPC, but we have no hesitation in also observing that this is one of the most misused provision of the Code for dragging the proceedings indefinitely, particularly in the Indian courts which are otherwise heavily overburdened with the pending cases. All Civil Courts ordinarily have a long list of cases, therefore, the Courts are compelled to grant long dates which causes delay in disposal of the cases. The applications for amendment lead to further delay in disposal of the cases31. In a recently published unique, unusual and extremely informative book "Justice, Courts and Delays", the author Arun Mohan, a Senior Advocate of the High Court of Delhi and of this Court, from his vast experience as a Civil Lawyer observed that 80% applications under Rule VI Order 17 are filed with the sole objective of delaying the proceedings, whereas 15% application are filed because of lackadaisical approach in the first instance, and 5% applications are those where there is actual need of amendment. His experience further revealed that out of these 100 applications, 95 applications are allowed and only 5 (even may be less) are rejected. According to him, a need for amendment of pleading should arise in a few cases, and if proper rules with regard to pleadings are put into place, it would be only in rare cases. Therefore, for allowing amendment, it is not just costs, but the delays caused thereby, benefit of such delays, the additional costs which had to be incurred by the victim of the amendment. The Court must scientifically evaluate the reasons, purpose and effect of the amendment and all these factors must be taken into consideration while awarding the costs32. To curtail delay in disposal of cases, in 1999 the Legislation altogether deleted Rule 17 which meant that amendment of pleading would no longer have been permissible. But immediately after the deletion there was widespread uproar and in 2002 Rule 17 was restored, but added a proviso. That proviso applies only after the trial has commenced. Prior to that stage, the situation remains as it was. According to the view of the learned author Arun Mohan as observed in his book, although the proviso has improved the position, the fact remains that amendments should be permissible, but only if a sufficient ground therefore is made out, and further, only on stringent terms. To that end, the rule needs to be further tightened33. The general principle is that courts at any stage of the proceedings may allow either party to alter or amend the pleadings in such manner and on such terms as may be just and all those amendments must be allowed which are imperative for determining the real question in controversy between the parties. The basic principles of grant or refusal of amendment articulated almost 125 years ago are still considered to be correct statement of law and our courts have been following the basic principles laid down in those cases45. Though the Court noticed `considerable force in the objection, keeping in view the prayer in the amendment which was not `foreign to the scope of the suit and all necessary facts were on record, it allowed the amendment47. Dismissing the appeal and confirming the order of the High Court, this Court observed that the discretionary power of amendment was not exercised by the High Court on wrong principles. There was merely a defect in the pleading which was removed by the amendment. The quality and quantity of the reliefs sought remained the same. Since the amendment did not introduce a new case, the defendant was not taken by surprise61. The first condition which must be satisfied before the amendment can be allowed by the court iswhether such amendment is necessary for the determination of the real question in controversy.If that condition is not satisfied, the amendment cannot be allowed. This is the basic test which should govern the courts discretion in grant or refusal of the amendment62. The other important condition which should govern the discretion of the Court is the potentiality of prejudice or injustice which is likely to be caused to other side. Ordinarily, if other side is compensated by costs, then there is no injustice but in practice hardly any court grants actual costs to the opposite side63. The Courts have very wide discretion in the matter of amendment of pleadings but courts powers must be exercised judiciously and with great care.
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M/S New India Sugar Mills Ltd Vs. Commissioner Of Sales Tax, Bihar | bargaining in the sense of offer and acceptance may be express or implied. That after the permit was obtained the two parties agreed to sell and purchase sugar admits of no doubt.57. I shall now analyse the whole transaction and see how the element of compulsion and control affects the existence of a sale. First there is the fixation of price by the Controller. Can it be said that there is no sale because the price is fixed by a third person and not by the buyer and seller ? This is the old controversy between Labeo and Proculus that if price is fixed by a third person a contract of sale results or not. Labeo with whom Cassius agreed, held that there was not, while Proculus was of the contrary opinion:"Pertium autem certum esse debut. Nam alioquin si ita inter nos convenerit. ut guanti Titius rem aestemauerit, tanti sit empta, Labeo negavit ullam uim hoc negotium habere, cuius optnionem Cassius probat. Ofilius et eam emptionem et uenditionem; cuius opinionem Proculus secutus est."(Gaius III, 140).This was solved by Justinian holding that there was:"Sea nostra decisio ita hoc constituit."(Inst. III, 23,1).58. I do not think the modern law is any different. So long as the parties trade under controls at fixed price and accept these as any other law of the realm because they must, the contract is at the fixed price both sides having or deemed to have agreed to such a price. Consent under the law of contract need not be express, it can be implied. There are cases in which a sale takes place by the operation of law rather than by mutual agreement express or implied. See Benjamin on sale (8th Edn. p. 91). The present is just another example of an implied contract with an implied offer and implied acceptance by the parties. What I have said about price applies also to quantity and quality. The entry in No. 48 of List II Seventh Schedule dealt with sale of goods in all its forms. We have seen above how numerous are these forms. The entry was expressed in six simple words but was meant to include a power to tax sale of goods in all its forms. It was not meant to operate only in those elementary cases where there is an offer by A and an acceptance by B with the price as consideration. The concept of taxes on sale of goods is more complicated and the relations of people do not always take elementary forms. When the Province after receiving the permit telegraphed instructions to dispatch sugar and the mill dispatched it, a contract emerged and consent must be implied on both sides though not expressed antecedently to the permit. The indent of the Province was the offer to purchase sugar of such and such quality and quantity. The mills by quoting their stocks offer to sell sugar. The Controller brought the seller and purchaser together and gave them his permission with respect to a particular quantity and quality. There was thus an implied contract of sale in the words of the Digest (XL 1,1, IX, 4):"Si cui libera universorum negotiorum administratio a domino permissa fuerit, isque ec hic negotris rem vendiderit et tradiderit facit eam accipientis."59. No doubt, there is compulsion in both selling and buying, perhaps more for the mills than for the Provinces. But a compelled sale is nevertheless a sale as was held by the House of Lords in New Castle Breweries v. Inland Revenue Commissioner, (1927) 97 LJ KB 735. The case in 1955 AC 696 was different because the section there interpreted required a sale and there was no sale express or implied when the wagons were taken away and compensation was paid in the shape of transport stock. There a sale in its ordinary forms was obviously meant though it was recognised that sale in other context has other meanings.60. It was argued that there must be mutuality. The one party must be free to offer and must offer and the other side must be free to accept and must accept the offer before a sale can be said to arise. But sales often take place without volition of a party. A sick man is given medicines under the orders of his doctor and pays for them to the chemist with tax on the price. He does not even know the names of the medicines. Did he make an offer to the chemist from his sick bed ? The affairs of the world are very complicated and sales are not always in their elementary forms. Due to short supply or misdistribution of goods, controls have to be imposed. There are permits price controls, rationing and shops which are licensed. Can it be said that there is no sale because mutuality is lost on one account or another? It was not said in the Tata Iron and Steel case, (1958) SCR 1355 : (AIR 1958 SC 452 ) which was a case of control, that there was no sale. The entry should be interpreted in a liberal spirit and not cut down by narrow technical considerations. The entry in other words should not be shorn of all its consent to leave a mere husk of legislative power. For the purposes of legislation such as on sales tax it is only necessary to see whether there is a sale express or implied. Such a sale was not found in "forward" contracts and in respect of materials used in building contracts. But the same cannot be said of all situations. I for one would not curtail the entry any further. The entry has its meaning and within its meaning there is a plenary power. If a sale express or implied is found to exist then the tax must follow. I am of the opinion that in these transactions there was a sale of sugar for a price and the tax was payable. I would therefore, dismiss these appeals with costs. | 1[ds]HIDATATULLAH, J.13. I regret my inability to agree that Gannon Dunkerleys case, (1959) SCR 379 : (AIR 1958 SC 560 ) can be extended to cover the facts here. I would confirm the decision of the High Court and dismiss these appeals for the reasons I proceed to give. These reasons are applicable to all the appeals in. I have paused long over this case but only because the line of reasoning of this case has been closely followed in Gannon Dunkerleys case 1959 SCR 379 : (AIR 1958 SC 560 ). The decision of the Court of Appeal, later approved by the House of Lords, had also influenced in a large measure the decision of the Madras High Court earlier in the same case.50. In Gannon Dunkerleys case, 1959 SCR 379 : (AIR 1958 SC 560 ) Venkatarama Aiyar J. posed the questionsole question for determination in this appeal is whether the provisions of the Madras General Sales Tax Act are ultra vires, in so far as they seek to impose a tax on the supply of materials in execution of works contract, treating it as a sale of goods by the contractor and the answer to it must depend on the meaning to be given to the words "sale of goods" in Entry 48 in List II of Sch. VII of the Government of India Act,Lordship accepted that building materials were goods in view of the definition and narrowed the inquiry to whether there was "a sale of those materials within the meaning of that word in Entry 48". The learned judge then pointed out that in interpreting a Constitution a liberal spirit should inspire courts and the widest amplitude must be given to the legislative entries and they should not be cut down by resort to legislative practice and that subjects of taxation in particular should be taken in rerum nature irrespective of previous laws on the subject. The learned judge next asked the question in what sense the words sale of goods were used, whether popular or legal, and what its connotation is either in the one sense or the others." After noticing meanings of "sale" as given by diverse authors, it was laid down that it meant transfer of property in thing from one person to another for a money price. It was next pointed out that in the popular sense a sale "is said to take place when the bargain is settled between the parties, though property in the goods may not pass at that stage" and the observations of Sankey J. (later Viscount Sankey L. C.) in Nevile Reid and Co. Ltd. v. Commissioners of Inland Revenue, (1928) 12 Tax Cases 545 that the word sale in the British Finance Act, 1918, should not be construed in the light of the Sale of Goods Act 1893 but in a commercial and business sense, were rejected as orbiter and opposed to the decisions of this Court in Poppatlal Shahs case 1953 SCR 677 : (AIR 1953 SCR 274 and Budh Prakash case (1955) 1 SCR 243 : (AIR 1954 SC 459 ) where "executory agreements" were not held to be sales within the Entry. It was observed"We must accordingly hold that the expression sale of goods in Entry 48 cannot be construed in its popular sense and that it must be interpreted in its legal sense. What its connotation in that sense is must now be ascertained. For a correct determination it is necessary to digress somewhat into the evolution of the law relating to sale of goods.Before considering the facts of this case in the light of the Sugar and Sugar Products Control Order 1946, I shall summaries what I have said so far. Sales tax is a tax which may be laid on goods or services. It assumes numerous shapes and forms. It is a modern tax being the product of the First World War. The concept of sale is of course much older and even the English Sale of Goods Act, 1893 on which our own statute is based, was prior to the first imposition of tax in modern times. In India, the tax was first levied in 1937 under laws made under entry No. 48 which read"Taxes on the sale of goods." It was introduced as the main source of revenue to the Provinces under a scheme of Provincial Autonomy. Being a commodity tax it came into competition with other commodity taxes like excise but it was held that the entry comprised, wholesale, retail and turnover taxes from the stage of manufacture or production to consumption. Later textual interpretation based on statutes relating to sale of goods and books on the subject of sale, pointed out intrinsic limitations. one such limitation was that the terms sale was used in the limited sense it bears in that part of the law of contract which is now incorporated in the Sale of Goods Act. As a result of this fundamental consideration forward contracts were held to be outside the scope of the Entry. The sale, it was held, had to be a completed sale with passing of property before the tax could become payable. A further limitation was pointed out in certain cases relating to building contracts in which it was held that though property in material passed, it did so without an agreement, express or implied, in that behalf, and only when the materials ceased to be goods and became immovable property. It was held that the supremacy of the Provincial Legislatures did not extend to levying a tax on sales in these circumstances by modifying the definition of sale. It was however held that if the parties agreed to divide a works contract into labour plus materials, the tax might be leviable. It was also held that a tax on building materials was leviable by the legislature having power to levy a tax not expressly mentioned. It was, however held that if the taxing Province had the goods at the time of the contract or there was other substantial connection with the contract by reason of some element having taken place there, the Legislature could validly make a law which treated the whole transaction as having taken place in the Province.55. The argument in this case is that the tax can only be placed upon a transaction of sale which is the result of mutual assent between the buyer and seller and observations in Gannon Dunkerleys case, 1959 SCR 379 : (AIR 1958 SC 560 ) where stress is laid upon the consensual aspect of sale are relied upon. It is true that consent makes a contract of sale because sale is one of the four consensual contracts recognised from early times. "Consensu fiunt obligations in emptionibus venditionibus" and "Ideo autem istis modis consensu dicimus obligationes contrahi". But consent may be express or implied and it cannot be said that unless the offer and acceptance are there in an elementary form there can be no taxable sale. The observations in Gannon Dunkerleys case 1959 SCR 379 : (AIR 1958 SC 560 ) were made in connection with materials utilised in the construction of buildings, roads, bridges etc. It was there pointed out that there must at least be an agreement between the parties, express or implied, in respect of some goods as goods and the levy of the tax on building materials was struck down because "there is no agreement to sell materials as much, and that property in them does not pass as movables."56. The commodity with which we are concerned is sugar and it is delivered as sugar. Thus one part of the reasoning from Gannon Dunkerleys case, 1959 SCR 379 : (AIR 1958 SC 560 ) which rested on the passing of property in building materials as a part of realty does not apply. It is also quite clear that the tax is being demanded after the sugar has changed hands or expressing it in legal phrase when property in it has passed. It is argued that by reason of the Control Order here was no bargaining. It is pointed out that the control of sugar operated to fixprice, to determine who should be the supplier and who should receive the supply to fix the quantity, quality, and the time of delivery. The question which we are deciding is not a question arising under the Sale of Goods Act but under a taxing entry in a Constitution. The entry described a source of revenue to the Provinces. The provincial Legislature made its laws taxing sales of commodities like sugar. In a period of emergency the Federal Government imposed certain controls to regulate prices and supplies. This control involved a permit system under which every Province had to indent its requirements to the Controller and every sugar mill had to inform the Controller of the existing and future stocks. What the Controller did was to permit a particular mill to supply sugar of a stated quality and quantity to a named Province. The mill then had to send the sugar on pain of prosecution and forfeiture and receive price according to the fixed rates. Bargaining, it is said, was not possible but bargaining in the sense of offer and acceptance may be express or implied. That after the permit was obtained the two parties agreed to sell and purchase sugar admits of no doubt.57. I shall now analyse the whole transaction and see how the element of compulsion and control affects the existence of a sale. First there is the fixation of price by the Controller. Can it be said that there is no sale because the price is fixed by a third person and not by the buyer and seller ? This is the old controversy between Labeo and Proculus that if price is fixed by a third person a contract of sale results or not. Labeo with whom Cassius agreed, held that there was not, while Proculus was of the contraryautem certum esse debut. Nam alioquin si ita inter nos convenerit. ut guanti Titius rem aestemauerit, tanti sit empta, Labeo negavit ullam uim hoc negotium habere, cuius optnionem Cassius probat. Ofilius et eam emptionem et uenditionem; cuius opinionem Proculus secutusIII, 140).This was solved by Justinian holding that therenostra decisio ita hoc constituit.III, 23,1).58. I do not think the modern law is any different. So long as the parties trade under controls at fixed price and accept these as any other law of the realm because they must, the contract is at the fixed price both sides having or deemed to have agreed to such a price. Consent under the law of contract need not be express, it can be implied. There are cases in which a sale takes place by the operation of law rather than by mutual agreement express or implied. See Benjamin on sale (8th Edn. p. 91). The present is just another example of an implied contract with an implied offer and implied acceptance by the parties. What I have said about price applies also to quantity and quality. The entry in No. 48 of List II Seventh Schedule dealt with sale of goods in all its forms. We have seen above how numerous are these forms. The entry was expressed in six simple words but was meant to include a power to tax sale of goods in all its forms. It was not meant to operate only in those elementary cases where there is an offer by A and an acceptance by B with the price as consideration. The concept of taxes on sale of goods is more complicated and the relations of people do not always take elementary forms. When the Province after receiving the permit telegraphed instructions to dispatch sugar and the mill dispatched it, a contract emerged and consent must be implied on both sides though not expressed antecedently to the permit. The indent of the Province was the offer to purchase sugar of such and such quality and quantity. The mills by quoting their stocks offer to sell sugar. The Controller brought the seller and purchaser together and gave them his permission with respect to a particular quantity and quality. There was thus an implied contract of sale in the words of the Digest (XL 1,1, IX,cui libera universorum negotiorum administratio a domino permissa fuerit, isque ec hic negotris rem vendiderit et tradiderit facit eam accipientis.No doubt, there is compulsion in both selling and buying, perhaps more for the mills than for the Provinces. But a compelled sale is nevertheless a sale as was held by the House of Lords in New Castle Breweries v. Inland Revenue Commissioner, (1927) 97 LJ KB 735. The case in 1955 AC 696 was different because the section there interpreted required a sale and there was no sale express or implied when the wagons were taken away and compensation was paid in the shape of transport stock. There a sale in its ordinary forms was obviously meant though it was recognised that sale in other context has other meanings.60. It was argued that there must be mutuality. The one party must be free to offer and must offer and the other side must be free to accept and must accept the offer before a sale can be said to arise. But sales often take place without volition of a party. A sick man is given medicines under the orders of his doctor and pays for them to the chemist with tax on the price. He does not even know the names of the medicines. Did he make an offer to the chemist from his sick bed ? The affairs of the world are very complicated and sales are not always in their elementary forms. Due to short supply or misdistribution of goods, controls have to be imposed. There are permits price controls, rationing and shops which are licensed. Can it be said that there is no sale because mutuality is lost on one account or another? It was not said in the Tata Iron and Steel case, (1958) SCR 1355 : (AIR 1958 SC 452 ) which was a case of control, that there was no sale. The entry should be interpreted in a liberal spirit and not cut down by narrow technical considerations. The entry in other words should not be shorn of all its consent to leave a mere husk of legislative power. For the purposes of legislation such as on sales tax it is only necessary to see whether there is a sale express or implied. Such a sale was not found in "forward" contracts and in respect of materials used in building contracts. But the same cannot be said of all situations. I for one would not curtail the entry any further. The entry has its meaning and within its meaning there is a plenary power. If a sale express or implied is found to exist then the tax must follow. I am of the opinion that in these transactions there was a sale of sugar for a price and the tax was payable. I would therefore, dismiss these appeals with costs. | 1 | 19,163 | 2,754 | ### Instruction:
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bargaining in the sense of offer and acceptance may be express or implied. That after the permit was obtained the two parties agreed to sell and purchase sugar admits of no doubt.57. I shall now analyse the whole transaction and see how the element of compulsion and control affects the existence of a sale. First there is the fixation of price by the Controller. Can it be said that there is no sale because the price is fixed by a third person and not by the buyer and seller ? This is the old controversy between Labeo and Proculus that if price is fixed by a third person a contract of sale results or not. Labeo with whom Cassius agreed, held that there was not, while Proculus was of the contrary opinion:"Pertium autem certum esse debut. Nam alioquin si ita inter nos convenerit. ut guanti Titius rem aestemauerit, tanti sit empta, Labeo negavit ullam uim hoc negotium habere, cuius optnionem Cassius probat. Ofilius et eam emptionem et uenditionem; cuius opinionem Proculus secutus est."(Gaius III, 140).This was solved by Justinian holding that there was:"Sea nostra decisio ita hoc constituit."(Inst. III, 23,1).58. I do not think the modern law is any different. So long as the parties trade under controls at fixed price and accept these as any other law of the realm because they must, the contract is at the fixed price both sides having or deemed to have agreed to such a price. Consent under the law of contract need not be express, it can be implied. There are cases in which a sale takes place by the operation of law rather than by mutual agreement express or implied. See Benjamin on sale (8th Edn. p. 91). The present is just another example of an implied contract with an implied offer and implied acceptance by the parties. What I have said about price applies also to quantity and quality. The entry in No. 48 of List II Seventh Schedule dealt with sale of goods in all its forms. We have seen above how numerous are these forms. The entry was expressed in six simple words but was meant to include a power to tax sale of goods in all its forms. It was not meant to operate only in those elementary cases where there is an offer by A and an acceptance by B with the price as consideration. The concept of taxes on sale of goods is more complicated and the relations of people do not always take elementary forms. When the Province after receiving the permit telegraphed instructions to dispatch sugar and the mill dispatched it, a contract emerged and consent must be implied on both sides though not expressed antecedently to the permit. The indent of the Province was the offer to purchase sugar of such and such quality and quantity. The mills by quoting their stocks offer to sell sugar. The Controller brought the seller and purchaser together and gave them his permission with respect to a particular quantity and quality. There was thus an implied contract of sale in the words of the Digest (XL 1,1, IX, 4):"Si cui libera universorum negotiorum administratio a domino permissa fuerit, isque ec hic negotris rem vendiderit et tradiderit facit eam accipientis."59. No doubt, there is compulsion in both selling and buying, perhaps more for the mills than for the Provinces. But a compelled sale is nevertheless a sale as was held by the House of Lords in New Castle Breweries v. Inland Revenue Commissioner, (1927) 97 LJ KB 735. The case in 1955 AC 696 was different because the section there interpreted required a sale and there was no sale express or implied when the wagons were taken away and compensation was paid in the shape of transport stock. There a sale in its ordinary forms was obviously meant though it was recognised that sale in other context has other meanings.60. It was argued that there must be mutuality. The one party must be free to offer and must offer and the other side must be free to accept and must accept the offer before a sale can be said to arise. But sales often take place without volition of a party. A sick man is given medicines under the orders of his doctor and pays for them to the chemist with tax on the price. He does not even know the names of the medicines. Did he make an offer to the chemist from his sick bed ? The affairs of the world are very complicated and sales are not always in their elementary forms. Due to short supply or misdistribution of goods, controls have to be imposed. There are permits price controls, rationing and shops which are licensed. Can it be said that there is no sale because mutuality is lost on one account or another? It was not said in the Tata Iron and Steel case, (1958) SCR 1355 : (AIR 1958 SC 452 ) which was a case of control, that there was no sale. The entry should be interpreted in a liberal spirit and not cut down by narrow technical considerations. The entry in other words should not be shorn of all its consent to leave a mere husk of legislative power. For the purposes of legislation such as on sales tax it is only necessary to see whether there is a sale express or implied. Such a sale was not found in "forward" contracts and in respect of materials used in building contracts. But the same cannot be said of all situations. I for one would not curtail the entry any further. The entry has its meaning and within its meaning there is a plenary power. If a sale express or implied is found to exist then the tax must follow. I am of the opinion that in these transactions there was a sale of sugar for a price and the tax was payable. I would therefore, dismiss these appeals with costs.
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is said, was not possible but bargaining in the sense of offer and acceptance may be express or implied. That after the permit was obtained the two parties agreed to sell and purchase sugar admits of no doubt.57. I shall now analyse the whole transaction and see how the element of compulsion and control affects the existence of a sale. First there is the fixation of price by the Controller. Can it be said that there is no sale because the price is fixed by a third person and not by the buyer and seller ? This is the old controversy between Labeo and Proculus that if price is fixed by a third person a contract of sale results or not. Labeo with whom Cassius agreed, held that there was not, while Proculus was of the contraryautem certum esse debut. Nam alioquin si ita inter nos convenerit. ut guanti Titius rem aestemauerit, tanti sit empta, Labeo negavit ullam uim hoc negotium habere, cuius optnionem Cassius probat. Ofilius et eam emptionem et uenditionem; cuius opinionem Proculus secutusIII, 140).This was solved by Justinian holding that therenostra decisio ita hoc constituit.III, 23,1).58. I do not think the modern law is any different. So long as the parties trade under controls at fixed price and accept these as any other law of the realm because they must, the contract is at the fixed price both sides having or deemed to have agreed to such a price. Consent under the law of contract need not be express, it can be implied. There are cases in which a sale takes place by the operation of law rather than by mutual agreement express or implied. See Benjamin on sale (8th Edn. p. 91). The present is just another example of an implied contract with an implied offer and implied acceptance by the parties. What I have said about price applies also to quantity and quality. The entry in No. 48 of List II Seventh Schedule dealt with sale of goods in all its forms. We have seen above how numerous are these forms. The entry was expressed in six simple words but was meant to include a power to tax sale of goods in all its forms. It was not meant to operate only in those elementary cases where there is an offer by A and an acceptance by B with the price as consideration. The concept of taxes on sale of goods is more complicated and the relations of people do not always take elementary forms. When the Province after receiving the permit telegraphed instructions to dispatch sugar and the mill dispatched it, a contract emerged and consent must be implied on both sides though not expressed antecedently to the permit. The indent of the Province was the offer to purchase sugar of such and such quality and quantity. The mills by quoting their stocks offer to sell sugar. The Controller brought the seller and purchaser together and gave them his permission with respect to a particular quantity and quality. There was thus an implied contract of sale in the words of the Digest (XL 1,1, IX,cui libera universorum negotiorum administratio a domino permissa fuerit, isque ec hic negotris rem vendiderit et tradiderit facit eam accipientis.No doubt, there is compulsion in both selling and buying, perhaps more for the mills than for the Provinces. But a compelled sale is nevertheless a sale as was held by the House of Lords in New Castle Breweries v. Inland Revenue Commissioner, (1927) 97 LJ KB 735. The case in 1955 AC 696 was different because the section there interpreted required a sale and there was no sale express or implied when the wagons were taken away and compensation was paid in the shape of transport stock. There a sale in its ordinary forms was obviously meant though it was recognised that sale in other context has other meanings.60. It was argued that there must be mutuality. The one party must be free to offer and must offer and the other side must be free to accept and must accept the offer before a sale can be said to arise. But sales often take place without volition of a party. A sick man is given medicines under the orders of his doctor and pays for them to the chemist with tax on the price. He does not even know the names of the medicines. Did he make an offer to the chemist from his sick bed ? The affairs of the world are very complicated and sales are not always in their elementary forms. Due to short supply or misdistribution of goods, controls have to be imposed. There are permits price controls, rationing and shops which are licensed. Can it be said that there is no sale because mutuality is lost on one account or another? It was not said in the Tata Iron and Steel case, (1958) SCR 1355 : (AIR 1958 SC 452 ) which was a case of control, that there was no sale. The entry should be interpreted in a liberal spirit and not cut down by narrow technical considerations. The entry in other words should not be shorn of all its consent to leave a mere husk of legislative power. For the purposes of legislation such as on sales tax it is only necessary to see whether there is a sale express or implied. Such a sale was not found in "forward" contracts and in respect of materials used in building contracts. But the same cannot be said of all situations. I for one would not curtail the entry any further. The entry has its meaning and within its meaning there is a plenary power. If a sale express or implied is found to exist then the tax must follow. I am of the opinion that in these transactions there was a sale of sugar for a price and the tax was payable. I would therefore, dismiss these appeals with costs.
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Divya Mfg.Co.(P)Ltd Vs. Union Bank Of India | That is because the Court is the custodian of the interests of the company and its creditors and the sanction of the Court required under the Companies Act has to be exercised with judicial discretion regard being had to the interests of the Company and its creditors and the sanction of the Court required under the Companies Act has to be exercised with judicial discretion regard being had to the interests of the company and its creditors as well. The principle was followed in Rathnaswami Pillai v. Sadapathy Pillai, AIR 1925 Mad. 318 and S. Soundarajan v. M/s Roshan & Co., AIR 1940 Mad. 42 . In A. Subbaraya Mudaliar v. K. Sundararajan, AIR 1951 Mad. 986 , it was pointed out that the condition of confirmation by the Court being a safeguard against the property being sold at an inadequate price, it will be not only proper but necessary that the Court in exercising the discretion which it undoubtedly has of accepting or refusing the highest bid at the auction held in pursuance of its orders, should see that the price fetched at the auction is an adequate price even though there is no suggestion of irregularity or fraud." 13. From the aforesaid observation, it is abundantly clear that the Court is the custodian of the interests of the Company and its creditors. Hence, it is the duty of the Court to see that the price fetched at the auction is an adequate price even though there is no suggestion of irregularity or fraud. As stated above, in the present case, the sale proceedings have a chequered history. The appellant started its offer after having an agreement with the Employees Samity for Rs. 374 lakhs. This was on the face of it under bidding for the taking undue advantage of Court also. At the intervention of the learned Single Judge, the bid was increased to Rs. 85 lakhs. Subsequently, before the Division Bench, the appellant increased it to Rs. 1.30 crores. At that state, respondent No. No. 7, `Sharma was not permitted to bid because it had not complied with the requirements of the advertisement. It is to be sated that on 26th June, 1998, the Division Bench has ordered that offers of Eastern Silk Industries Ltd. and Jay Presteressed Products Ltd. would only be considered on 2nd July, 1998, and confirmation of sale would be made on the basis of the offers made by the two parties. Further, despite the fact that the appellant `Divya had withdrawn its earlier offer, the Court permitted it to take part in making further offer as noted in the order dated 2nd July, 1998. In these set of circumstances, there was no need to confine the bid between three offerors only. 14. In LICA (P) Ltd. (1) v. Official Liquidator and anr. (1996)85 Comp. Cases 788, this Court dealing with a similar question observed thus : "The purpose of an open auction is to get the most remunerative price and it is the duty of the court to keep openness of the auction so that the intending bidders would be free to participate and other higher value. If that path is cut down or closed the possibility of fraud or to secure inadequate price or underbidding would loom large. The Court would, therefore, have to exercise its discretion wisely and with circumspection and keeping in view the facts an circumstances in each case." The matter was again brought before this Court and in LICA (P) Ltd. (2) v. Official Liquidator & anr., (1996)85 Comp. Cases 792, and the Court held : "Proper control of the proceedings and meaningful intervention by the Court would prevent the formation of a syndicate, underbidding and the resultant sale of property for an inadequate price. The order passed by this Court yielded the result that the property which would have been finalised at Rs. 45 lakhs, fetched Rs. 1.10 crores and in this court a further offer of Rs. 1.25 crores is made. In other words, the property under sale is capable of fetching a higher market price. Under these circumstances, though there is some force in the contention of Sri Ramaswamy that the Court auction may not normally be repeatedly disturbed since this court on the earlier occasion, had limited the auction between the two bidders, the impediment will not stand in the way to direct sale afresh. Even today the parties are prepared to participate in the bid." 15. Further, there is a specific condition No. 11 in terms and conditions of sale as quoted above which empowers the Court to set aside the sale even though it is confirmed for the interests of creditors, contributories and all concerned and/or public interest. In this view of the matter, it cannot be said that the Court became functus officio after the sale was confirmed. As stated above, neither the possession of the property nor the sale deed was executed in favour of the appellant. The offer of Rs. 1.30 crore is totally inadequate in comparison to the offer of Rs. 2 crores and in case where such higher price is offered, it would be in the interest of the company and its creditors to set aside the sale. This may cause some inconvenience or loss to the highest bidder but that cannot be helped in view of the fact that such sales are conducted in Court precincts and not by a business house well versed with the market force and price. Confirmation of the sale by a Court at grossly inadequate price, whether or not it is a consequence of any irregularity or fraud in the conduct of sale, could be set aside on the ground that it was not just and proper exercise of judicial discretion. In such cases, a meaningful intervention by the Court may prevent, to some extent, underbidding at the time of auction through Court. In the present case, the Court has reviewed its exercise of judicial discretion within a shortest time. | 0[ds]11. In our view, on facts it is apparent that the Division Bench of the High Court has considered all the relevant facts including the fact that a that initial state, the appellant `Divya offered only Rs. 37 lakhs to purchase the properties. That means, the appellant wanted to purchase at a throw away price. Thereafter, at the intervention of the Court, the price was increased to Rs. 1.3 crores by the appellant. This indicates that appellant was keen to purchase the property, however by paying only the bear minimal amount and to take advantage of sale by the liquidator in the hope that if there are o other purchasers, it would purchase the company at a price which is abnormally below the market price. It is also true that on 2nd July 1998, the offer made by the appellant was accepted and it was ordered that sale in its faovur be confirmed, but at the same time, before possession of the property could be handed over, or before the sale deed could be executed in its favour, respondent Nos. 7 and 8 pointed out that the assets and properties could be sold at Rs. 2 crores. For showing their bona fides, they were directed to deposit Rs. 40 lakhs each and also to pay Rs. 70 thousand each as damages to the appellant. Further, the application for setting aside the sale was field within a few days of the order accepting the bid of the appellant. In these set of circumstances, when correct market value of the assets was not property known to the Court and the sale was confirmed at grossly inadequate price, it was open to the Court to set it at naught in the interest of the company, its secured and unsecured creditors and the employees. Appellant is also duly compensated by payment of Rs. 70 thousand each by respondent Nos. 7 and 8.12. The law on this subject isIn the case of Navalkha and Sons (supra), after appellants offer was accepted, a fresh offer from one Gopaldas Darak for higher amount was received by stating that he could not offer in time because he came to know of the sale only 2 days prior to the date of the application and there was possibility of higher bids. Instead of directing a fresh auction or calling for fresh offers, the learned Judge thought it proper to arrange an open bid in the court itself on that very day as between M/s Navalkha and higher offeror Gopaldas Darak. M/s Navalkha thereafter offered higher bid at Rs. 8,82,000 and its bid was accepted and the learned Judge concluded the sale in its favour with a direction to pay the balance amount. Thereafter an application was filed offering Rs. 10 lakhs. A contention was raised that due publicity of the sale of property was not made, but that application was rejected by the Court. Hence, an appeal was filed b the applicant who made an offer of Rs. 10 lakhs and another by one contributory against the order of confirmation. Both appeals were allowed by the Division Bench and the order passed by the learned Judge was set aside with a direction to take fresh steps for sale of the property either by calling sealed tenders or by auction in accordance with law. That order was challenged before this Court by M/s Navalkha. It was contended that there was no justification for the Division Bench to interfere with the order of the learned Single Judge.From the aforesaid observation, it is abundantly clear that the Court is the custodian of the interests of the Company and its creditors. Hence, it is the duty of the Court to see that the price fetched at the auction is an adequate price even though there is no suggestion of irregularity or fraud. As stated above, in the present case, the sale proceedings have a chequered history. The appellant started its offer after having an agreement with the Employees Samity for Rs. 374 lakhs. This was on the face of it under bidding for the taking undue advantage of Court also. At the intervention of the learned Single Judge, the bid was increased to Rs. 85 lakhs. Subsequently, before the Division Bench, the appellant increased it to Rs. 1.30 crores. At that state, respondent No. No. 7, `Sharma was not permitted to bid because it had not complied with the requirements of the advertisement. It is to be sated that on 26th June, 1998, the Division Bench has ordered that offers of Eastern Silk Industries Ltd. and Jay Presteressed Products Ltd. would only be considered on 2nd July, 1998, and confirmation of sale would be made on the basis of the offers made by the two parties. Further, despite the fact that the appellant `Divya had withdrawn its earlier offer, the Court permitted it to take part in making further offer as noted in the order dated 2nd July, 1998. In these set of circumstances, there was no need to confine the bid between three offerors only.Further, there is a specific condition No. 11 in terms and conditions of sale as quoted above which empowers the Court to set aside the sale even though it is confirmed for the interests of creditors, contributories and all concerned and/or public interest. In this view of the matter, it cannot be said that the Court became functus officio after the sale was confirmed. As stated above, neither the possession of the property nor the sale deed was executed in favour of the appellant. The offer of Rs. 1.30 crore is totally inadequate in comparison to the offer of Rs. 2 crores and in case where such higher price is offered, it would be in the interest of the company and its creditors to set aside the sale. This may cause some inconvenience or loss to the highest bidder but that cannot be helped in view of the fact that such sales are conducted in Court precincts and not by a business house well versed with the market force and price. Confirmation of the sale by a Court at grossly inadequate price, whether or not it is a consequence of any irregularity or fraud in the conduct of sale, could be set aside on the ground that it was not just and proper exercise of judicial discretion. In such cases, a meaningful intervention by the Court may prevent, to some extent, underbidding at the time of auction through Court. In the present case, the Court has reviewed its exercise of judicial discretion within a shortest time. | 0 | 4,585 | 1,214 | ### Instruction:
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That is because the Court is the custodian of the interests of the company and its creditors and the sanction of the Court required under the Companies Act has to be exercised with judicial discretion regard being had to the interests of the Company and its creditors and the sanction of the Court required under the Companies Act has to be exercised with judicial discretion regard being had to the interests of the company and its creditors as well. The principle was followed in Rathnaswami Pillai v. Sadapathy Pillai, AIR 1925 Mad. 318 and S. Soundarajan v. M/s Roshan & Co., AIR 1940 Mad. 42 . In A. Subbaraya Mudaliar v. K. Sundararajan, AIR 1951 Mad. 986 , it was pointed out that the condition of confirmation by the Court being a safeguard against the property being sold at an inadequate price, it will be not only proper but necessary that the Court in exercising the discretion which it undoubtedly has of accepting or refusing the highest bid at the auction held in pursuance of its orders, should see that the price fetched at the auction is an adequate price even though there is no suggestion of irregularity or fraud." 13. From the aforesaid observation, it is abundantly clear that the Court is the custodian of the interests of the Company and its creditors. Hence, it is the duty of the Court to see that the price fetched at the auction is an adequate price even though there is no suggestion of irregularity or fraud. As stated above, in the present case, the sale proceedings have a chequered history. The appellant started its offer after having an agreement with the Employees Samity for Rs. 374 lakhs. This was on the face of it under bidding for the taking undue advantage of Court also. At the intervention of the learned Single Judge, the bid was increased to Rs. 85 lakhs. Subsequently, before the Division Bench, the appellant increased it to Rs. 1.30 crores. At that state, respondent No. No. 7, `Sharma was not permitted to bid because it had not complied with the requirements of the advertisement. It is to be sated that on 26th June, 1998, the Division Bench has ordered that offers of Eastern Silk Industries Ltd. and Jay Presteressed Products Ltd. would only be considered on 2nd July, 1998, and confirmation of sale would be made on the basis of the offers made by the two parties. Further, despite the fact that the appellant `Divya had withdrawn its earlier offer, the Court permitted it to take part in making further offer as noted in the order dated 2nd July, 1998. In these set of circumstances, there was no need to confine the bid between three offerors only. 14. In LICA (P) Ltd. (1) v. Official Liquidator and anr. (1996)85 Comp. Cases 788, this Court dealing with a similar question observed thus : "The purpose of an open auction is to get the most remunerative price and it is the duty of the court to keep openness of the auction so that the intending bidders would be free to participate and other higher value. If that path is cut down or closed the possibility of fraud or to secure inadequate price or underbidding would loom large. The Court would, therefore, have to exercise its discretion wisely and with circumspection and keeping in view the facts an circumstances in each case." The matter was again brought before this Court and in LICA (P) Ltd. (2) v. Official Liquidator & anr., (1996)85 Comp. Cases 792, and the Court held : "Proper control of the proceedings and meaningful intervention by the Court would prevent the formation of a syndicate, underbidding and the resultant sale of property for an inadequate price. The order passed by this Court yielded the result that the property which would have been finalised at Rs. 45 lakhs, fetched Rs. 1.10 crores and in this court a further offer of Rs. 1.25 crores is made. In other words, the property under sale is capable of fetching a higher market price. Under these circumstances, though there is some force in the contention of Sri Ramaswamy that the Court auction may not normally be repeatedly disturbed since this court on the earlier occasion, had limited the auction between the two bidders, the impediment will not stand in the way to direct sale afresh. Even today the parties are prepared to participate in the bid." 15. Further, there is a specific condition No. 11 in terms and conditions of sale as quoted above which empowers the Court to set aside the sale even though it is confirmed for the interests of creditors, contributories and all concerned and/or public interest. In this view of the matter, it cannot be said that the Court became functus officio after the sale was confirmed. As stated above, neither the possession of the property nor the sale deed was executed in favour of the appellant. The offer of Rs. 1.30 crore is totally inadequate in comparison to the offer of Rs. 2 crores and in case where such higher price is offered, it would be in the interest of the company and its creditors to set aside the sale. This may cause some inconvenience or loss to the highest bidder but that cannot be helped in view of the fact that such sales are conducted in Court precincts and not by a business house well versed with the market force and price. Confirmation of the sale by a Court at grossly inadequate price, whether or not it is a consequence of any irregularity or fraud in the conduct of sale, could be set aside on the ground that it was not just and proper exercise of judicial discretion. In such cases, a meaningful intervention by the Court may prevent, to some extent, underbidding at the time of auction through Court. In the present case, the Court has reviewed its exercise of judicial discretion within a shortest time.
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0
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the liquidator in the hope that if there are o other purchasers, it would purchase the company at a price which is abnormally below the market price. It is also true that on 2nd July 1998, the offer made by the appellant was accepted and it was ordered that sale in its faovur be confirmed, but at the same time, before possession of the property could be handed over, or before the sale deed could be executed in its favour, respondent Nos. 7 and 8 pointed out that the assets and properties could be sold at Rs. 2 crores. For showing their bona fides, they were directed to deposit Rs. 40 lakhs each and also to pay Rs. 70 thousand each as damages to the appellant. Further, the application for setting aside the sale was field within a few days of the order accepting the bid of the appellant. In these set of circumstances, when correct market value of the assets was not property known to the Court and the sale was confirmed at grossly inadequate price, it was open to the Court to set it at naught in the interest of the company, its secured and unsecured creditors and the employees. Appellant is also duly compensated by payment of Rs. 70 thousand each by respondent Nos. 7 and 8.12. The law on this subject isIn the case of Navalkha and Sons (supra), after appellants offer was accepted, a fresh offer from one Gopaldas Darak for higher amount was received by stating that he could not offer in time because he came to know of the sale only 2 days prior to the date of the application and there was possibility of higher bids. Instead of directing a fresh auction or calling for fresh offers, the learned Judge thought it proper to arrange an open bid in the court itself on that very day as between M/s Navalkha and higher offeror Gopaldas Darak. M/s Navalkha thereafter offered higher bid at Rs. 8,82,000 and its bid was accepted and the learned Judge concluded the sale in its favour with a direction to pay the balance amount. Thereafter an application was filed offering Rs. 10 lakhs. A contention was raised that due publicity of the sale of property was not made, but that application was rejected by the Court. Hence, an appeal was filed b the applicant who made an offer of Rs. 10 lakhs and another by one contributory against the order of confirmation. Both appeals were allowed by the Division Bench and the order passed by the learned Judge was set aside with a direction to take fresh steps for sale of the property either by calling sealed tenders or by auction in accordance with law. That order was challenged before this Court by M/s Navalkha. It was contended that there was no justification for the Division Bench to interfere with the order of the learned Single Judge.From the aforesaid observation, it is abundantly clear that the Court is the custodian of the interests of the Company and its creditors. Hence, it is the duty of the Court to see that the price fetched at the auction is an adequate price even though there is no suggestion of irregularity or fraud. As stated above, in the present case, the sale proceedings have a chequered history. The appellant started its offer after having an agreement with the Employees Samity for Rs. 374 lakhs. This was on the face of it under bidding for the taking undue advantage of Court also. At the intervention of the learned Single Judge, the bid was increased to Rs. 85 lakhs. Subsequently, before the Division Bench, the appellant increased it to Rs. 1.30 crores. At that state, respondent No. No. 7, `Sharma was not permitted to bid because it had not complied with the requirements of the advertisement. It is to be sated that on 26th June, 1998, the Division Bench has ordered that offers of Eastern Silk Industries Ltd. and Jay Presteressed Products Ltd. would only be considered on 2nd July, 1998, and confirmation of sale would be made on the basis of the offers made by the two parties. Further, despite the fact that the appellant `Divya had withdrawn its earlier offer, the Court permitted it to take part in making further offer as noted in the order dated 2nd July, 1998. In these set of circumstances, there was no need to confine the bid between three offerors only.Further, there is a specific condition No. 11 in terms and conditions of sale as quoted above which empowers the Court to set aside the sale even though it is confirmed for the interests of creditors, contributories and all concerned and/or public interest. In this view of the matter, it cannot be said that the Court became functus officio after the sale was confirmed. As stated above, neither the possession of the property nor the sale deed was executed in favour of the appellant. The offer of Rs. 1.30 crore is totally inadequate in comparison to the offer of Rs. 2 crores and in case where such higher price is offered, it would be in the interest of the company and its creditors to set aside the sale. This may cause some inconvenience or loss to the highest bidder but that cannot be helped in view of the fact that such sales are conducted in Court precincts and not by a business house well versed with the market force and price. Confirmation of the sale by a Court at grossly inadequate price, whether or not it is a consequence of any irregularity or fraud in the conduct of sale, could be set aside on the ground that it was not just and proper exercise of judicial discretion. In such cases, a meaningful intervention by the Court may prevent, to some extent, underbidding at the time of auction through Court. In the present case, the Court has reviewed its exercise of judicial discretion within a shortest time.
|
Madan Gopal Agarwal Vs. District Magistrate, Allahabad & Others | the writ of certiorari. The argument on behalf of the Government in this Court was that as the Government was acting in an administrative capacity and not in a judicial or quasi-judicial capacity, the writ of certiorari could not be issued. This Court held that the act of requisitioning was administrative in nature and not quasi-judicial. The argument that the existence of a public purpose required judicial consideration was negatived. In the second case, the High Court held that the decision of the District Magistrate that there existed a public purpose and a particular accommodation was needed for that purpose was final and could not be questioned in a court of law. In the third case, an accommodation was requisitioned under the Bombay Land Requisition Act, 1948. It was held that it was for the Government to decide whether there existed a public purpose to justify the requisitioning of accommodation. In the last case, this Court held that the expression "public purpose" was wide enough to include temporary as well as a durable purpose. Section 5 of the Bombay Land Requisition Act, 1948 placed no limitation on the competent authority as to what kind of purpose would justify the exercise of power. 14. Counsel for the appellant has relied on A. K. Kraipak and Others v. Union of India, ((1970) 1 SCR 457 : (1969) 2 SCC 262 : (1970) 1 SCR 475) Daud Ahmad v. The District Magistrate, Allahabad and Others, (AIR 1972 SC 896 : (1972) 1 SCC 655 ) and State of Punjab v. K. R. Erry and Sobhag Rai Mehta. (C. As. Nos. 1893-1894 of 1967, decided on 21-9-1972 : 1973 SCC (Lab) 63) Kraipak (supra), certain Government employees of the State of Jammu and Kashmir felt aggrieved with the selection of persons for appointment to the Indian Forest Service. The selections were made solely on the basis of the record of officer. Their suitability was not decided by oral or written examination, nor were they interviewed. A. K. Kraipak (supra), contended before this Court that the selections were bad as they were made without following the principles of natural justice. The contrary argument was that the principles of natural justice would not apply to the administrative act of selection of officers for appointment to the Indian Forest Service. Hegde, J., said that "the dividing line between an administrative power and a quasi-judicial power is quite thin and is being gradually obliterated". At Pages 465 and 466 of the report, the learned Judge added : "With the increase of the power of the administrative bodies it has become necessary to provide guidelines for the just exercise of their power. To prevent the abuse of that power and to see that it does not become a new despotism, courts are gradually evolving the principles to be observed while exercising such powers. In matters like these, public good is not advanced by a rigid adherence to precedents. New problems call for new solutions". Assuming that the committee making selection of officers for appointment to the Indian Forest Service was exercising administrative power, the learned Judge said : "The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words, they do not supplant the law of the land but supplement it ...... If the purpose of the rules of natural justice is to prevent miscarriage, one fails to see why those rules should be made inapplicable to administrative enquiries. Often times it is not easy to draw the line that demarcates administrative enquiries from judicial enquiries. Enquiries which were considered administrative at one time are now being considered as quasi-judicial in character. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far reaching effect than a decision in a quasi-judicial enquiry". 15. In K. R. Erry case (supra), this Court held that the pensionary right of a superannuated Government Servant is property and that this pension cannot be reduce without giving him a hearing even though the relevant service rules do not expressly provide for a hearing. Daud Ahmad case (supra) is a direct authority for the point before us. There the Court was concerned with an order under Section 3 of the Act. Daud Ahmad was occupying a certain accommodation of which he was the owner. The accommodation was requisitioned by the District Magistrate without notice and hearing. This Court quashed the order of requisition for want of notice and hearing. One of us (A. N. Ray, J.) said : "The principle of natural justice has been applicable to administrative enquiries or quasi-judicial enquiries. It is the nature of the power and circumstances and conditions under which it is exercised that will occasion the invocation of the principle of natural justice. Deprivation of property affects rights of a person. If under the Requisition Act the petitioner was to be deprived of the occupation of the premises the District Magistrate had to hold an enquiry in order to arrive at an opinion that there existed alternative accommodation for the petitioner or the District Magistrate was to provide alternative accommodation". 16. Counsel for the District Magistrate has submitted that Daud Ahmad case (supra), is distinguishable from the present case, for there the Court was concerned with interpreting the second proviso to Section 3. Daud Ahmad and K. R. Erry case (supra), hold that in an enactment which deprives a person of his property, there is necessarily implied the pre-requisite of hearing. These cases support our construction that notice and hearing to the affected party is necessarily implied in Section 3. It is not disputed on behalf of the District Magistrate that the requisitioning order was made by him without giving notice and hearing to the appellant. So we hold that his order is illegal. | 1[ds]13. In the first case, certain property was requisitioned under Section 3 of the Bombay Land Requisition Ordinance, 1947, by an order of the Government, dated February 6, 1948. The order was made before the commencement of the Constitution. It was challenged by a petition in the High Court of Bombay. The petitioner prayed for the issue of a writ of certiorari to quash the order. The Bombay High Court issued the writ of certiorari. The argument on behalf of the Government in this Court was that as the Government was acting in an administrative capacity and not in a judicial or quasi-judicial capacity, the writ of certiorari could not be issued. This Court held that the act of requisitioning was administrative in nature and not quasi-judicial. The argument that the existence of a public purpose required judicial consideration was negatived. In the second case, the High Court held that the decision of the District Magistrate that there existed a public purpose and a particular accommodation was needed for that purpose was final and could not be questioned in a court of law. In the third case, an accommodation was requisitioned underthe Bombay Land Requisition Act, 1948. It was held that it was for the Government to decide whether there existed a public purpose to justify the requisitioning of accommodation. In the last case, this Court held that the expression "public purpose" was wide enough to include temporary as well as a durable purpose. Section 5 ofthe Bombay Land Requisition Act, 1948 placed no limitation on the competent authority as to what kind of purpose would justify the exercise of power14. Counsel for the appellant has relied on A. K. Kraipak and Others v. Union of India, ((1970) 1 SCR 457 : (1969) 2 SCC 262 : (1970) 1 SCR 475) Daud Ahmad v. The District Magistrate, Allahabad and Others, (AIR 1972 SC 896 : (1972) 1 SCC 655 ) and State of Punjab v. K. R. Erry and Sobhag Rai Mehta. (C. As. Nos. 1893-1894 of 1967, decided on 21-9-1972 : 1973 SCC (Lab) 63) Kraipak (supra), certain Government employees of the State of Jammu and Kashmir felt aggrieved with the selection of persons for appointment to the Indian Forest Service. The selections were made solely on the basis of the record of officer. Their suitability was not decided by oral or written examination, nor were they interviewed. A. K. Kraipak (supra), contended before this Court that the selections were bad as they were made without following the principles of natural justice.The contrary argument was that the principles of natural justice would not apply to the administrative act of selection of officers for appointment to the Indian Forest Service. Hegde, J., said that "the dividing line between an administrative power and a quasi-judicial power is quite thin and is being gradually obliterated". At Pages 465 and 466 of the report, the learned Judge added : "With the increase of the power of the administrative bodies it has become necessary to provide guidelines for the just exercise of their power. To prevent the abuse of that power and to see that it does not become a new despotism, courts are gradually evolving the principles to be observed while exercising such powers. In matters like these, public good is not advanced by a rigid adherence to precedents. New problems call for new solutions". Assuming that the committee making selection of officers for appointment to the Indian Forest Service was exercising administrative power, the learned Judge said : "The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words, they do not supplant the law of the land but supplement it ...... If the purpose of the rules of natural justice is to prevent miscarriage, one fails to see why those rules should be made inapplicable to administrative enquiries. Often times it is not easy to draw the line that demarcates administrative enquiries from judicial enquiries. Enquiries which were considered administrative at one time are now being considered as quasi-judicial in character. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far reaching effect than a decision in a quasi-judicial enquiry"15. In K. R. Erry case (supra), this Court held that the pensionary right of a superannuated Government Servant is property and that this pension cannot be reduce without giving him a hearing even though the relevant service rules do not expressly provide for a hearing. Daud Ahmad case (supra) is a direct authority for the point before us. There the Court was concerned with an order under Section 3 of the Act. Daud Ahmad was occupying a certain accommodation of which he was the owner. The accommodation was requisitioned by the District Magistrate without notice and hearing. This Court quashed the order of requisition for want of notice and hearing. One of us (A. N. Ray, J.) said : "The principle of natural justice has been applicable to administrative enquiries or quasi-judicial enquiries. It is the nature of the power and circumstances and conditions under which it is exercised that will occasion the invocation of the principle of natural justice. Deprivation of property affects rights of a person. If under the Requisition Act the petitioner was to be deprived of the occupation of the premises the District Magistrate had to hold an enquiry in order to arrive at an opinion that there existed alternative accommodation for the petitioner or the District Magistrate was to provide alternative accommodation"16. Counsel for the District Magistrate has submitted that Daud Ahmad case (supra), is distinguishable from the present case, for there the Court was concerned with interpreting the second proviso to Section 3. Daud Ahmad and K. R. Erry case (supra), hold that in an enactment which deprives a person of his property, there is necessarily implied the pre-requisite of hearing. These cases support our construction that notice and hearing to the affected party is necessarily implied in Section 3. It is not disputed on behalf of the District Magistrate that the requisitioning order was made by him without giving notice and hearing to the appellant. So we hold that his order is illegal. | 1 | 3,205 | 1,192 | ### Instruction:
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the writ of certiorari. The argument on behalf of the Government in this Court was that as the Government was acting in an administrative capacity and not in a judicial or quasi-judicial capacity, the writ of certiorari could not be issued. This Court held that the act of requisitioning was administrative in nature and not quasi-judicial. The argument that the existence of a public purpose required judicial consideration was negatived. In the second case, the High Court held that the decision of the District Magistrate that there existed a public purpose and a particular accommodation was needed for that purpose was final and could not be questioned in a court of law. In the third case, an accommodation was requisitioned under the Bombay Land Requisition Act, 1948. It was held that it was for the Government to decide whether there existed a public purpose to justify the requisitioning of accommodation. In the last case, this Court held that the expression "public purpose" was wide enough to include temporary as well as a durable purpose. Section 5 of the Bombay Land Requisition Act, 1948 placed no limitation on the competent authority as to what kind of purpose would justify the exercise of power. 14. Counsel for the appellant has relied on A. K. Kraipak and Others v. Union of India, ((1970) 1 SCR 457 : (1969) 2 SCC 262 : (1970) 1 SCR 475) Daud Ahmad v. The District Magistrate, Allahabad and Others, (AIR 1972 SC 896 : (1972) 1 SCC 655 ) and State of Punjab v. K. R. Erry and Sobhag Rai Mehta. (C. As. Nos. 1893-1894 of 1967, decided on 21-9-1972 : 1973 SCC (Lab) 63) Kraipak (supra), certain Government employees of the State of Jammu and Kashmir felt aggrieved with the selection of persons for appointment to the Indian Forest Service. The selections were made solely on the basis of the record of officer. Their suitability was not decided by oral or written examination, nor were they interviewed. A. K. Kraipak (supra), contended before this Court that the selections were bad as they were made without following the principles of natural justice. The contrary argument was that the principles of natural justice would not apply to the administrative act of selection of officers for appointment to the Indian Forest Service. Hegde, J., said that "the dividing line between an administrative power and a quasi-judicial power is quite thin and is being gradually obliterated". At Pages 465 and 466 of the report, the learned Judge added : "With the increase of the power of the administrative bodies it has become necessary to provide guidelines for the just exercise of their power. To prevent the abuse of that power and to see that it does not become a new despotism, courts are gradually evolving the principles to be observed while exercising such powers. In matters like these, public good is not advanced by a rigid adherence to precedents. New problems call for new solutions". Assuming that the committee making selection of officers for appointment to the Indian Forest Service was exercising administrative power, the learned Judge said : "The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words, they do not supplant the law of the land but supplement it ...... If the purpose of the rules of natural justice is to prevent miscarriage, one fails to see why those rules should be made inapplicable to administrative enquiries. Often times it is not easy to draw the line that demarcates administrative enquiries from judicial enquiries. Enquiries which were considered administrative at one time are now being considered as quasi-judicial in character. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far reaching effect than a decision in a quasi-judicial enquiry". 15. In K. R. Erry case (supra), this Court held that the pensionary right of a superannuated Government Servant is property and that this pension cannot be reduce without giving him a hearing even though the relevant service rules do not expressly provide for a hearing. Daud Ahmad case (supra) is a direct authority for the point before us. There the Court was concerned with an order under Section 3 of the Act. Daud Ahmad was occupying a certain accommodation of which he was the owner. The accommodation was requisitioned by the District Magistrate without notice and hearing. This Court quashed the order of requisition for want of notice and hearing. One of us (A. N. Ray, J.) said : "The principle of natural justice has been applicable to administrative enquiries or quasi-judicial enquiries. It is the nature of the power and circumstances and conditions under which it is exercised that will occasion the invocation of the principle of natural justice. Deprivation of property affects rights of a person. If under the Requisition Act the petitioner was to be deprived of the occupation of the premises the District Magistrate had to hold an enquiry in order to arrive at an opinion that there existed alternative accommodation for the petitioner or the District Magistrate was to provide alternative accommodation". 16. Counsel for the District Magistrate has submitted that Daud Ahmad case (supra), is distinguishable from the present case, for there the Court was concerned with interpreting the second proviso to Section 3. Daud Ahmad and K. R. Erry case (supra), hold that in an enactment which deprives a person of his property, there is necessarily implied the pre-requisite of hearing. These cases support our construction that notice and hearing to the affected party is necessarily implied in Section 3. It is not disputed on behalf of the District Magistrate that the requisitioning order was made by him without giving notice and hearing to the appellant. So we hold that his order is illegal.
### Response:
1
### Explanation:
writ of certiorari. The argument on behalf of the Government in this Court was that as the Government was acting in an administrative capacity and not in a judicial or quasi-judicial capacity, the writ of certiorari could not be issued. This Court held that the act of requisitioning was administrative in nature and not quasi-judicial. The argument that the existence of a public purpose required judicial consideration was negatived. In the second case, the High Court held that the decision of the District Magistrate that there existed a public purpose and a particular accommodation was needed for that purpose was final and could not be questioned in a court of law. In the third case, an accommodation was requisitioned underthe Bombay Land Requisition Act, 1948. It was held that it was for the Government to decide whether there existed a public purpose to justify the requisitioning of accommodation. In the last case, this Court held that the expression "public purpose" was wide enough to include temporary as well as a durable purpose. Section 5 ofthe Bombay Land Requisition Act, 1948 placed no limitation on the competent authority as to what kind of purpose would justify the exercise of power14. Counsel for the appellant has relied on A. K. Kraipak and Others v. Union of India, ((1970) 1 SCR 457 : (1969) 2 SCC 262 : (1970) 1 SCR 475) Daud Ahmad v. The District Magistrate, Allahabad and Others, (AIR 1972 SC 896 : (1972) 1 SCC 655 ) and State of Punjab v. K. R. Erry and Sobhag Rai Mehta. (C. As. Nos. 1893-1894 of 1967, decided on 21-9-1972 : 1973 SCC (Lab) 63) Kraipak (supra), certain Government employees of the State of Jammu and Kashmir felt aggrieved with the selection of persons for appointment to the Indian Forest Service. The selections were made solely on the basis of the record of officer. Their suitability was not decided by oral or written examination, nor were they interviewed. A. K. Kraipak (supra), contended before this Court that the selections were bad as they were made without following the principles of natural justice.The contrary argument was that the principles of natural justice would not apply to the administrative act of selection of officers for appointment to the Indian Forest Service. Hegde, J., said that "the dividing line between an administrative power and a quasi-judicial power is quite thin and is being gradually obliterated". At Pages 465 and 466 of the report, the learned Judge added : "With the increase of the power of the administrative bodies it has become necessary to provide guidelines for the just exercise of their power. To prevent the abuse of that power and to see that it does not become a new despotism, courts are gradually evolving the principles to be observed while exercising such powers. In matters like these, public good is not advanced by a rigid adherence to precedents. New problems call for new solutions". Assuming that the committee making selection of officers for appointment to the Indian Forest Service was exercising administrative power, the learned Judge said : "The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words, they do not supplant the law of the land but supplement it ...... If the purpose of the rules of natural justice is to prevent miscarriage, one fails to see why those rules should be made inapplicable to administrative enquiries. Often times it is not easy to draw the line that demarcates administrative enquiries from judicial enquiries. Enquiries which were considered administrative at one time are now being considered as quasi-judicial in character. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far reaching effect than a decision in a quasi-judicial enquiry"15. In K. R. Erry case (supra), this Court held that the pensionary right of a superannuated Government Servant is property and that this pension cannot be reduce without giving him a hearing even though the relevant service rules do not expressly provide for a hearing. Daud Ahmad case (supra) is a direct authority for the point before us. There the Court was concerned with an order under Section 3 of the Act. Daud Ahmad was occupying a certain accommodation of which he was the owner. The accommodation was requisitioned by the District Magistrate without notice and hearing. This Court quashed the order of requisition for want of notice and hearing. One of us (A. N. Ray, J.) said : "The principle of natural justice has been applicable to administrative enquiries or quasi-judicial enquiries. It is the nature of the power and circumstances and conditions under which it is exercised that will occasion the invocation of the principle of natural justice. Deprivation of property affects rights of a person. If under the Requisition Act the petitioner was to be deprived of the occupation of the premises the District Magistrate had to hold an enquiry in order to arrive at an opinion that there existed alternative accommodation for the petitioner or the District Magistrate was to provide alternative accommodation"16. Counsel for the District Magistrate has submitted that Daud Ahmad case (supra), is distinguishable from the present case, for there the Court was concerned with interpreting the second proviso to Section 3. Daud Ahmad and K. R. Erry case (supra), hold that in an enactment which deprives a person of his property, there is necessarily implied the pre-requisite of hearing. These cases support our construction that notice and hearing to the affected party is necessarily implied in Section 3. It is not disputed on behalf of the District Magistrate that the requisitioning order was made by him without giving notice and hearing to the appellant. So we hold that his order is illegal.
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District Collector, Vizianagaram Vs. Authorised Controller of Sugar Units of Bobbili | 1. The only point for decision in these appeals by special leave is the correctness of the view taken by the High Court in the impugned judgment that a company incorporated under the Companies Act is not obliged to file a declaration as required by Section 8 of the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 (for short "the Act"). This view has been taken by the High Court in a revision filed against an order of the Land Reforms Appellate Tribunal 2. The view of the High Court is based on GOMs No. 1637 of 14-12-1977 of the Government of Andhra Pradesh from which such an inference was drawn. The GOMs has later been rescinded by GOMs No. 1384 dated 29-8-1981. That apart, we have no doubt that the view taken by the High Court is based on a misconstruction of the relevant provisions of the Act 3. The definition of "person" in clause (o) of Section 3 is as under "3. (o) person includes an individual, a family unit; a trustee, a company, a firm, a society or an association of individuals, whether incorporated or not;" This definition clearly includes a company within the ambit of "person" for the purpose of the Act. Section 8 requires every person whose holding on the notified date exceeds the specified limit to submit a declaration as prescribed therein. The meaning of the word "person" in Section 8 has to be understood as defined in Section 3(o) of the Act. It is, therefore, clear that a company is a "person" for the purpose of the Act and is required to comply with Section 8 of the Act. The contrary view taken by the High Court cannot be sustained | 1[ds]This definition clearly includes a company within the ambit of "person" for the purpose of the Act. Section 8 requires every person whose holding on the notified date exceeds the specified limit to submit a declaration as prescribed therein. The meaning of the word "person" in Section 8 has to be understood as defined in Section 3(o) of the Act. It is, therefore, clear that a company is a "person" for the purpose of the Act and is required to comply with Section 8 of the Act. The contrary view taken by the High Court cannot be sustained | 1 | 337 | 118 | ### 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:
1. The only point for decision in these appeals by special leave is the correctness of the view taken by the High Court in the impugned judgment that a company incorporated under the Companies Act is not obliged to file a declaration as required by Section 8 of the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 (for short "the Act"). This view has been taken by the High Court in a revision filed against an order of the Land Reforms Appellate Tribunal 2. The view of the High Court is based on GOMs No. 1637 of 14-12-1977 of the Government of Andhra Pradesh from which such an inference was drawn. The GOMs has later been rescinded by GOMs No. 1384 dated 29-8-1981. That apart, we have no doubt that the view taken by the High Court is based on a misconstruction of the relevant provisions of the Act 3. The definition of "person" in clause (o) of Section 3 is as under "3. (o) person includes an individual, a family unit; a trustee, a company, a firm, a society or an association of individuals, whether incorporated or not;" This definition clearly includes a company within the ambit of "person" for the purpose of the Act. Section 8 requires every person whose holding on the notified date exceeds the specified limit to submit a declaration as prescribed therein. The meaning of the word "person" in Section 8 has to be understood as defined in Section 3(o) of the Act. It is, therefore, clear that a company is a "person" for the purpose of the Act and is required to comply with Section 8 of the Act. The contrary view taken by the High Court cannot be sustained
### Response:
1
### Explanation:
This definition clearly includes a company within the ambit of "person" for the purpose of the Act. Section 8 requires every person whose holding on the notified date exceeds the specified limit to submit a declaration as prescribed therein. The meaning of the word "person" in Section 8 has to be understood as defined in Section 3(o) of the Act. It is, therefore, clear that a company is a "person" for the purpose of the Act and is required to comply with Section 8 of the Act. The contrary view taken by the High Court cannot be sustained
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Madhya Bharat Cotton Association Ltd Vs. Union Of India & Anr | as the first of the three Orders under review was made on 11-12-1952 and the last on 3-9-1953 it was within the Textile Commissioners discretion to view it with caution and to wait until it was better established before allowing it to operate hedge contracts. "Hedging", like insurance and banking, requires experience and stability; also, it so vitally affects the welfare of a large section of the people of India and Indias economic stability in world markets that it cannot be lightly entrusted to inexperienced hands.7. The petitioning Association, however, contends that though it has been incorporated recently it is in reality a successor of a much older Association, the "New Ujjain Sauda Forward Delivery Society", and has a long history of hedging behind it. As the petitioners affidavit disclosed no details, we adjourned the case to enable the petitioner to give us further details. These have now been filed and we get the following facts from them.8. First, it is evident that there have been dealings in hedge contracts in the area, or part of it, that now embraces Madhya Bharat, from as far back as 1913. We find that Regulations were passed in the years 1913, 1936, 1940 and 1941. But that, in itself, is not of much use because we are concerned with the history of the New Ujjain Society and the effect of its continuity, if any. The petitioner relies on the following. In the year1933 an Association called the Ujjain Cotton Merchants Association was formed. This is not the New Ujjain Sauda Forward Delivery Society which the petitioner relies on. It is merely an association of certain cotton merchants in Ujjain. There is nothing to indicate that the Society was incorporated, and hedge contracts are not mentioned either in its Memorandum or its Rules. Apart from general assistance to its members, its main object appears to have been"to control the cotton trade at Ujjain for the benefit of the trade in a better and useful way."9. From there, there is a jump of thirteen years to 1946 and it is said that the New Ujjain Sauda Forward Delivery Society was formed and incorporated in 1946 or1947.Nothing has been produced to establish this though we adjourned the case for over two months to enable to petitioning Association to make good its assertions. However, accepting the fact that it was duly incorporated we come to 7-8-1946.10. On this date there was a meeting of some of the members of the Cotton Merchants Association, Ujjain. Hedge trading is mentioned for the first time (so far as our papers are concerned) on this date. The object of the meeting was to form a separate institution for the development of forward contracts in cotton. It was proposed that the new institution should be called "the New Ujjain Sauda Forward Delivery Society". The meeting thus convened did not formed the new body; it merely made a proposal that such a body should be formed. It is not clear whether the meeting thus convened was a meeting of the old Ujjain Cotton Merchants Association formed in 1933 because here the meeting called itself the Cotton Merchants Association, Ujjain, and the heading says it was a meeting of some of the members of the Cotton Merchants Association, Ujjain. There is therefore doubt whether the meeting was of the Association itself or only of certain of its members who decided to meet and pass such a resolution.11. On 26-12-1948 the Sauda Forward Delivery Associations, at Indore and Ujjain were permitted by a Gwalior Notification to carry on the business of Hedge Contracts.12. The next document on which reliance is placed is a resolution of 4-10-1951 of the Managing Board of the New Ujjain Sauda For-ward Delivery for handling hedge contracts in the newly formed State of Madhya Bharat. The resolution stressed the need of a new body to be organised "on modern lines" and suggests that it should be called either the Madhya Bharat Cotton Exchange or the Madhya Bharat Cotton Association. It continues -"When all the legal formalities of this new institution are complete the deposits of the members of the Society be handed over to this........"13. But it took a full year for the new association to get going. It was not incorporated till 3-10-1952. Two months later, New Ujjain Society acted on its resolution of 4-10-1951 and on 1-12-1952 its Secretary wrote to the Development Director of the petitioning Association and forwarded its resolution of 4-10-1951.On 6-12-1952 the Development Director appears to have decided that confirmation of the General Body of the Society was necessary before there could be any merger. Five days later (11-12-1952) came, the first of three impugned Orders.On 23-3-1953 the General Body of the New Ujjain Sauda Forward Delivery Society confirmed the proposal of 4-10-1951 and resolved that the necessary steps for merger with the Madhya Bharat Cotton Association be taken.On 16-4-1953, the petitioning Association took over the New Ujjain Sauda Forward Delivery Society.After that, on 16-7-1953, the second of the three impugned Orders was passed. Then came the present petition on 20-8-1953 and next the third of the three impugned Orders.14. It will be seen that the New Ujjain Society did not merge with the petitioning Association till after the impugned Order was passed. The fact of merger cannot therefore be used to impugn that Order; and as regards the other two Orders, they were made within four and six months of the merger and that has not left the Textile Commissioner sufficient time to judge of the effectiveness of the merger. The merger has been accomplished in a very leisurely and somewhat unbusiness like way; for example, it took from 4-10-1951 to 23-3-1953 to effect the merger. Consequently, there is justification for the omission to include the petitioning Association in the exemption given to the East India Cotton Association of Bombay. Also, the two associations cannot be said to be on a footing of equality, so no question of discrimination under Article 14 can arise. | 0[ds]4. Cotton was listed as an essential commodity" under Section 2(a) of the Essential Supplies (Temporary Powers) Act, 1946 (Act XXIV of1946), so the right of the State to control, and even to prohibit, transactions in it is evident. "Hedging" is of vital importance in cotton trading. It not only acts as an insurance and protects cotton growers, manufacturers and merchants but also acts as a check on reckless speculation and gambling when properly controlled. Consequently, it is important to have this type of dealing under proper supervision and control,as in the case of Banks and insurance companies, innocent persons may have to suffer for the reckless gambling and speculation of handful of persons anxious to get rich quickly. Further, cotton being a commodity essential to the life of the community, it is reasonable to have restrictions which may, in certain circumstances, extend to total prohibition for a time, of all normal trading in the commodity. Accordingly, we are of opinion that Clause 4 of the Cotton Control Order of 1950 does not offend Article 19(1) (g) of the Constitution because14. It will be seen that the New Ujjain Society did not merge with the petitioning Association till after the impugned Order was passed. The fact of merger cannot therefore be used to impugn that Order; and as regards the other two Orders, they were made within four and six months of the merger and that has not left the Textile Commissioner sufficient time to judge of the effectiveness of the merger. The merger has been accomplished in a very leisurely and somewhat unbusiness like way; for example, it took from53 to effect the merger. Consequently, there is justification for the omission to include the petitioning Association in the exemption given to the East India Cotton Association of Bombay. Also, the two associations cannot be said to be on a footing of equality, so no question of discrimination under Article 14 can arise. | 0 | 1,798 | 378 | ### 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:
as the first of the three Orders under review was made on 11-12-1952 and the last on 3-9-1953 it was within the Textile Commissioners discretion to view it with caution and to wait until it was better established before allowing it to operate hedge contracts. "Hedging", like insurance and banking, requires experience and stability; also, it so vitally affects the welfare of a large section of the people of India and Indias economic stability in world markets that it cannot be lightly entrusted to inexperienced hands.7. The petitioning Association, however, contends that though it has been incorporated recently it is in reality a successor of a much older Association, the "New Ujjain Sauda Forward Delivery Society", and has a long history of hedging behind it. As the petitioners affidavit disclosed no details, we adjourned the case to enable the petitioner to give us further details. These have now been filed and we get the following facts from them.8. First, it is evident that there have been dealings in hedge contracts in the area, or part of it, that now embraces Madhya Bharat, from as far back as 1913. We find that Regulations were passed in the years 1913, 1936, 1940 and 1941. But that, in itself, is not of much use because we are concerned with the history of the New Ujjain Society and the effect of its continuity, if any. The petitioner relies on the following. In the year1933 an Association called the Ujjain Cotton Merchants Association was formed. This is not the New Ujjain Sauda Forward Delivery Society which the petitioner relies on. It is merely an association of certain cotton merchants in Ujjain. There is nothing to indicate that the Society was incorporated, and hedge contracts are not mentioned either in its Memorandum or its Rules. Apart from general assistance to its members, its main object appears to have been"to control the cotton trade at Ujjain for the benefit of the trade in a better and useful way."9. From there, there is a jump of thirteen years to 1946 and it is said that the New Ujjain Sauda Forward Delivery Society was formed and incorporated in 1946 or1947.Nothing has been produced to establish this though we adjourned the case for over two months to enable to petitioning Association to make good its assertions. However, accepting the fact that it was duly incorporated we come to 7-8-1946.10. On this date there was a meeting of some of the members of the Cotton Merchants Association, Ujjain. Hedge trading is mentioned for the first time (so far as our papers are concerned) on this date. The object of the meeting was to form a separate institution for the development of forward contracts in cotton. It was proposed that the new institution should be called "the New Ujjain Sauda Forward Delivery Society". The meeting thus convened did not formed the new body; it merely made a proposal that such a body should be formed. It is not clear whether the meeting thus convened was a meeting of the old Ujjain Cotton Merchants Association formed in 1933 because here the meeting called itself the Cotton Merchants Association, Ujjain, and the heading says it was a meeting of some of the members of the Cotton Merchants Association, Ujjain. There is therefore doubt whether the meeting was of the Association itself or only of certain of its members who decided to meet and pass such a resolution.11. On 26-12-1948 the Sauda Forward Delivery Associations, at Indore and Ujjain were permitted by a Gwalior Notification to carry on the business of Hedge Contracts.12. The next document on which reliance is placed is a resolution of 4-10-1951 of the Managing Board of the New Ujjain Sauda For-ward Delivery for handling hedge contracts in the newly formed State of Madhya Bharat. The resolution stressed the need of a new body to be organised "on modern lines" and suggests that it should be called either the Madhya Bharat Cotton Exchange or the Madhya Bharat Cotton Association. It continues -"When all the legal formalities of this new institution are complete the deposits of the members of the Society be handed over to this........"13. But it took a full year for the new association to get going. It was not incorporated till 3-10-1952. Two months later, New Ujjain Society acted on its resolution of 4-10-1951 and on 1-12-1952 its Secretary wrote to the Development Director of the petitioning Association and forwarded its resolution of 4-10-1951.On 6-12-1952 the Development Director appears to have decided that confirmation of the General Body of the Society was necessary before there could be any merger. Five days later (11-12-1952) came, the first of three impugned Orders.On 23-3-1953 the General Body of the New Ujjain Sauda Forward Delivery Society confirmed the proposal of 4-10-1951 and resolved that the necessary steps for merger with the Madhya Bharat Cotton Association be taken.On 16-4-1953, the petitioning Association took over the New Ujjain Sauda Forward Delivery Society.After that, on 16-7-1953, the second of the three impugned Orders was passed. Then came the present petition on 20-8-1953 and next the third of the three impugned Orders.14. It will be seen that the New Ujjain Society did not merge with the petitioning Association till after the impugned Order was passed. The fact of merger cannot therefore be used to impugn that Order; and as regards the other two Orders, they were made within four and six months of the merger and that has not left the Textile Commissioner sufficient time to judge of the effectiveness of the merger. The merger has been accomplished in a very leisurely and somewhat unbusiness like way; for example, it took from 4-10-1951 to 23-3-1953 to effect the merger. Consequently, there is justification for the omission to include the petitioning Association in the exemption given to the East India Cotton Association of Bombay. Also, the two associations cannot be said to be on a footing of equality, so no question of discrimination under Article 14 can arise.
### Response:
0
### Explanation:
4. Cotton was listed as an essential commodity" under Section 2(a) of the Essential Supplies (Temporary Powers) Act, 1946 (Act XXIV of1946), so the right of the State to control, and even to prohibit, transactions in it is evident. "Hedging" is of vital importance in cotton trading. It not only acts as an insurance and protects cotton growers, manufacturers and merchants but also acts as a check on reckless speculation and gambling when properly controlled. Consequently, it is important to have this type of dealing under proper supervision and control,as in the case of Banks and insurance companies, innocent persons may have to suffer for the reckless gambling and speculation of handful of persons anxious to get rich quickly. Further, cotton being a commodity essential to the life of the community, it is reasonable to have restrictions which may, in certain circumstances, extend to total prohibition for a time, of all normal trading in the commodity. Accordingly, we are of opinion that Clause 4 of the Cotton Control Order of 1950 does not offend Article 19(1) (g) of the Constitution because14. It will be seen that the New Ujjain Society did not merge with the petitioning Association till after the impugned Order was passed. The fact of merger cannot therefore be used to impugn that Order; and as regards the other two Orders, they were made within four and six months of the merger and that has not left the Textile Commissioner sufficient time to judge of the effectiveness of the merger. The merger has been accomplished in a very leisurely and somewhat unbusiness like way; for example, it took from53 to effect the merger. Consequently, there is justification for the omission to include the petitioning Association in the exemption given to the East India Cotton Association of Bombay. Also, the two associations cannot be said to be on a footing of equality, so no question of discrimination under Article 14 can arise.
|
M/s. Nagpur Golden Transport Company (Regd.) Vs. M/s Nath Traders & Others | Rs.5,000/- and interest @ 18% per annum on the amount claimed by them. The appellant resisted the claim contending that the claim was not maintainable under the Consumer Protection Act, 1986 (for short `the Act). The District Consumer Disputes Redressal Forum, in its order dated 27.01.1999, held that the appellant as a common carrier was the insurer of the goods in transit and if the goods have been damaged, the appellant was liable to respondents No.1 and 2 for negligence. The District Consumer Disputes Forum, therefore, awarded a sum of Rs.3,60,131/- along with interest @ 18% per annum from 01.04.1997 till the date of payment and Rs.500/- as counsel fee and further sum of Rs.500/- as cost of the case.4. Aggrieved, the appellant filed appeal No.202 of 1999 before the Madhya Pradesh State Consumer Disputes Redressal Commission, Bhopal, and the State Consumer Disputes Redressal Commission in its order dated 07.10.1999 held that there was no legal infirmity in the order of the District Consumer Disputes Redressal Forum, Gwalior, awarding the sum of Rs.3,60,131/- but took the view that levy of interest @ 18% per annum was penal and instead directed the appellant to pay interest @ 12% per annum on the amount of Rs.3,60,131/- from the date of filing of the complaint (02.03.1998) till the date of payment. The appellant filed a revision but by the impugned order dated 18.02.2003 the National Consumer Disputes Redressal Commission dismissed the revision. 5. On 10.07.2003, this Court took note of the fact that the amount awarded in favour of the respondents No.1 and 2 by the District Consumer Disputes Redresal Forum had been deposited and the counsel for the appellant had no objection to the amount to be paid to respondents No.1 and 2. This Court in its order dated 10.07.2003 issued notice limited to the question of law raised before the Court. In the order dated 10.07.2003, however, this Court appears to have recorded a different question of law and hence the appellant has filed an application I.A. No.2 of 2003 for clarification of the aforesaid order dated 10.07.2003. On reading the application I.A. No.2 of 2003, we find that the question of law raised was whether the appellant was entitled to receive 198 monoblock pumps from respondent No.3 when he is held to be liable to pay the price of the monoblock pumps to respondents No.1 and 2. We, accordingly, correct the order dated 10.07.2003 as prayed by the appellant in the application for clarification in I.A. No.2 of 2003. 6. At the hearing of the appeal, learned counsel for the appellant submitted that the District Consumer Disputes Redressal Forum should have directed the respondent No.3 to return the 198 monoblock pumps to the appellant when the appellant has been held liable for the price of the monoblock pumps to the respondents No.1 and 2, who had paid for the same to respondent No.3. He submitted that the appellant cannot be held liable to pay the price of the monoblock pumps to respondents No.1 and 2 and at the same time not entitled to the return of the 198 monoblock pumps from respondent No.3. 7. Learned counsel for respondent No.3 relied on the counter affidavit filed on behalf of the respondent No.3 in this Court in which it is stated that the 198 damaged monoblock pumps had no value and the same have been kept in the godown of the respondent No.3 under the watch and ward of extra staff engaged by the respondent No.3 and that due to delay the monoblock pumps have become useless and have no value at all. 8. We have considered the submissions of learned counsel for the appellant and the respondent No.3 and we are of the considered opinion that if the District Consumer Disputes Redressal Forum directed the appellant to pay Rs.3,60,131/- to respondents No.1 and 2 and this sum of Rs. Rs.3,60,131/- covered the price of the monoblock pumps and this price of the monoblock pumps had also received by respondent No.3 from the respondents No.1 and 2, the appellant was entitled to the return of the damaged 198 monoblock pumps from respondent No.1. We are also of the view that in case the respondent No.3 has disposed of the 198 monoblock pumps in the meanwhile, the appellant was entitled to the value of the 198 damaged monoblock pumps realized by the respondent No.3. If the damaged monoblock pumps are not returned by respondent No.3 to the appellant or if the value of the damaged monoblock pumps realized by respondent No.3 are not paid to the appellant, respondent No.3 would stand unjustly enriched. To quote Lord Wright in Fibrosa Spolka Akcyjna v. Fairbairn Lawson Combe Barbour Ltd. [(1942) 2 ALL ER 122 (HL)]: "......Any civilized system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit, that is, to prevent a man from retaining the money of, or some benefit derived from, another which it is against conscience that he should keep. Such remedies in English law are generically different from remedies in contract or in tort, and are now recognized to fall within a third category of the common law which has been called quasi-contract or restitution." We are also of the considered opinion that the respondent No.3 was not entitled to any charges towards watch and ward etc. as respondent No.3 should not have retained the damaged monoblock pumps having received the full price of the pumps.9. We, therefore, remand the matter to the District Consumer Disputes Redressal Forum, Gwalior, with the direction to issue notice to the parties and after taking evidence, if necessary, order the return of the 198 damaged monoblock pumps by respondent No.3 to the appellant and if the 198 damaged monoblock pumps are not available with respondent No.3, to find out the value of the 198 damaged monoblock pumps realized by the respondent No.3 and direct the respondent No.3 to pay the said value to the appellant. | 1[ds]we are of the considered opinion that if the District Consumer Disputes Redressal Forum directed the appellant to pay Rs.3,60,131/- to respondents No.1 and 2 and this sum of Rs. Rs.3,60,131/- covered the price of the monoblock pumps and this price of the monoblock pumps had also received by respondent No.3 from the respondents No.1 and 2, the appellant was entitled to the return of the damaged 198 monoblock pumps from respondent No.1. We are also of the view that in case the respondent No.3 has disposed of the 198 monoblock pumps in the meanwhile, the appellant was entitled to the value of the 198 damaged monoblock pumps realized by the respondent No.3. If the damaged monoblock pumps are not returned by respondent No.3 to the appellant or if the value of the damaged monoblock pumps realized by respondent No.3 are not paid to the appellant, respondent No.3 would stand unjustlyare also of the considered opinion that the respondent No.3 was not entitled to any charges towards watch and ward etc. as respondent No.3 should not have retained the damaged monoblock pumps having received the full price of the pumps.9. We, therefore, remand the matter to the District Consumer Disputes Redressal Forum, Gwalior, with the direction to issue notice to the parties and after taking evidence, if necessary, order the return of the 198 damaged monoblock pumps by respondent No.3 to the appellant and if the 198 damaged monoblock pumps are not available with respondent No.3, to find out the value of the 198 damaged monoblock pumps realized by the respondent No.3 and direct the respondent No.3 to pay the said value to the appellant. | 1 | 1,287 | 295 | ### 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:
Rs.5,000/- and interest @ 18% per annum on the amount claimed by them. The appellant resisted the claim contending that the claim was not maintainable under the Consumer Protection Act, 1986 (for short `the Act). The District Consumer Disputes Redressal Forum, in its order dated 27.01.1999, held that the appellant as a common carrier was the insurer of the goods in transit and if the goods have been damaged, the appellant was liable to respondents No.1 and 2 for negligence. The District Consumer Disputes Forum, therefore, awarded a sum of Rs.3,60,131/- along with interest @ 18% per annum from 01.04.1997 till the date of payment and Rs.500/- as counsel fee and further sum of Rs.500/- as cost of the case.4. Aggrieved, the appellant filed appeal No.202 of 1999 before the Madhya Pradesh State Consumer Disputes Redressal Commission, Bhopal, and the State Consumer Disputes Redressal Commission in its order dated 07.10.1999 held that there was no legal infirmity in the order of the District Consumer Disputes Redressal Forum, Gwalior, awarding the sum of Rs.3,60,131/- but took the view that levy of interest @ 18% per annum was penal and instead directed the appellant to pay interest @ 12% per annum on the amount of Rs.3,60,131/- from the date of filing of the complaint (02.03.1998) till the date of payment. The appellant filed a revision but by the impugned order dated 18.02.2003 the National Consumer Disputes Redressal Commission dismissed the revision. 5. On 10.07.2003, this Court took note of the fact that the amount awarded in favour of the respondents No.1 and 2 by the District Consumer Disputes Redresal Forum had been deposited and the counsel for the appellant had no objection to the amount to be paid to respondents No.1 and 2. This Court in its order dated 10.07.2003 issued notice limited to the question of law raised before the Court. In the order dated 10.07.2003, however, this Court appears to have recorded a different question of law and hence the appellant has filed an application I.A. No.2 of 2003 for clarification of the aforesaid order dated 10.07.2003. On reading the application I.A. No.2 of 2003, we find that the question of law raised was whether the appellant was entitled to receive 198 monoblock pumps from respondent No.3 when he is held to be liable to pay the price of the monoblock pumps to respondents No.1 and 2. We, accordingly, correct the order dated 10.07.2003 as prayed by the appellant in the application for clarification in I.A. No.2 of 2003. 6. At the hearing of the appeal, learned counsel for the appellant submitted that the District Consumer Disputes Redressal Forum should have directed the respondent No.3 to return the 198 monoblock pumps to the appellant when the appellant has been held liable for the price of the monoblock pumps to the respondents No.1 and 2, who had paid for the same to respondent No.3. He submitted that the appellant cannot be held liable to pay the price of the monoblock pumps to respondents No.1 and 2 and at the same time not entitled to the return of the 198 monoblock pumps from respondent No.3. 7. Learned counsel for respondent No.3 relied on the counter affidavit filed on behalf of the respondent No.3 in this Court in which it is stated that the 198 damaged monoblock pumps had no value and the same have been kept in the godown of the respondent No.3 under the watch and ward of extra staff engaged by the respondent No.3 and that due to delay the monoblock pumps have become useless and have no value at all. 8. We have considered the submissions of learned counsel for the appellant and the respondent No.3 and we are of the considered opinion that if the District Consumer Disputes Redressal Forum directed the appellant to pay Rs.3,60,131/- to respondents No.1 and 2 and this sum of Rs. Rs.3,60,131/- covered the price of the monoblock pumps and this price of the monoblock pumps had also received by respondent No.3 from the respondents No.1 and 2, the appellant was entitled to the return of the damaged 198 monoblock pumps from respondent No.1. We are also of the view that in case the respondent No.3 has disposed of the 198 monoblock pumps in the meanwhile, the appellant was entitled to the value of the 198 damaged monoblock pumps realized by the respondent No.3. If the damaged monoblock pumps are not returned by respondent No.3 to the appellant or if the value of the damaged monoblock pumps realized by respondent No.3 are not paid to the appellant, respondent No.3 would stand unjustly enriched. To quote Lord Wright in Fibrosa Spolka Akcyjna v. Fairbairn Lawson Combe Barbour Ltd. [(1942) 2 ALL ER 122 (HL)]: "......Any civilized system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit, that is, to prevent a man from retaining the money of, or some benefit derived from, another which it is against conscience that he should keep. Such remedies in English law are generically different from remedies in contract or in tort, and are now recognized to fall within a third category of the common law which has been called quasi-contract or restitution." We are also of the considered opinion that the respondent No.3 was not entitled to any charges towards watch and ward etc. as respondent No.3 should not have retained the damaged monoblock pumps having received the full price of the pumps.9. We, therefore, remand the matter to the District Consumer Disputes Redressal Forum, Gwalior, with the direction to issue notice to the parties and after taking evidence, if necessary, order the return of the 198 damaged monoblock pumps by respondent No.3 to the appellant and if the 198 damaged monoblock pumps are not available with respondent No.3, to find out the value of the 198 damaged monoblock pumps realized by the respondent No.3 and direct the respondent No.3 to pay the said value to the appellant.
### Response:
1
### Explanation:
we are of the considered opinion that if the District Consumer Disputes Redressal Forum directed the appellant to pay Rs.3,60,131/- to respondents No.1 and 2 and this sum of Rs. Rs.3,60,131/- covered the price of the monoblock pumps and this price of the monoblock pumps had also received by respondent No.3 from the respondents No.1 and 2, the appellant was entitled to the return of the damaged 198 monoblock pumps from respondent No.1. We are also of the view that in case the respondent No.3 has disposed of the 198 monoblock pumps in the meanwhile, the appellant was entitled to the value of the 198 damaged monoblock pumps realized by the respondent No.3. If the damaged monoblock pumps are not returned by respondent No.3 to the appellant or if the value of the damaged monoblock pumps realized by respondent No.3 are not paid to the appellant, respondent No.3 would stand unjustlyare also of the considered opinion that the respondent No.3 was not entitled to any charges towards watch and ward etc. as respondent No.3 should not have retained the damaged monoblock pumps having received the full price of the pumps.9. We, therefore, remand the matter to the District Consumer Disputes Redressal Forum, Gwalior, with the direction to issue notice to the parties and after taking evidence, if necessary, order the return of the 198 damaged monoblock pumps by respondent No.3 to the appellant and if the 198 damaged monoblock pumps are not available with respondent No.3, to find out the value of the 198 damaged monoblock pumps realized by the respondent No.3 and direct the respondent No.3 to pay the said value to the appellant.
|
National Insurance Company Limited Vs. M/s. Swaranlata Das & Others | compensation in a fatal accidents action from Rs. 72, 000 awarded by the Motor Accident Claims Tribunal to Rs. 1, 50, 000 to the dependents of a certain Swapan Das, aged 26 years, who dies as a result of the injuries sustained in a motor accident that occurred on June 28, 1984 at Pagla Devta Bari on Assam-Agartala road when a truck hit him. 2. On April 24, 1990, some six years after the accident, a claim was brought by the parents as well as the widow of the deceased Swapan Das for a compensation of about Rs. 11, 00, 000. The deceased was said to be a dry fish manager earning about Rs. 1, 500 per month. The Tribunal did not accept this claim; but estimated the loss of dependency at Rs. 3, 600 annually and capitalised it on 20 years purchase value for arriving at the figure of Rs. 72, 000. This sum along with interest at the rate of 12% from the date of filing of the petition was awarded. 3. The respondents-claimants preferred an appeal before the High Court claiming enhancement. The High Court enhanced the compensation to Rs. 1, 50, 000. 4. Shri Jitender Sharma, learned senior counsel for the petitioner submitted that the claim was barred by time as, indeed, according to Shri Sharma, Section 166(3) of the Motor Vehicles Act, 1988 contemplates only a limited power of condonation of delay in filing a claim. That provision reads. "166. (3) No application for such compensation shall be entertained unless it is made within six months of the occurrence of the accident. Provided that the Claims Tribunal may entertain the application after the expiry of the said period of six months but not later than twelve months, if it is satisfied that the applicant was prevented by sufficient cause from making the application in time." * 5. Shri Sharma stated that the provisions in the 1988 Act in this behalf detract from their counterpart in the 1939 Act. He submitted that the position that even in respect of claims arising out of accidents occurring before the commencement of the 1988 Act but instituted after its commencement are governed by Section 166(3) of the 1988 Act is settled by a pronouncement of this Court in Vinod Gurudas Raikar v. National Insurance Co. Ltd. ( 1991 (4) SCC 33 ). 6. Shri Sharma is right in this submission. The pronouncement of this Court in Vinod Gurudas Raikar case ( 1991 (4) SCC 33 ) supports it; but this question had not been raise either before the Tribunal or the High Court. As the law on the matter is settled, it was not applied to the present claim as the petitioner did not raise it either before the Tribunal or before the High Court. 7. It is also true that while the Tribunal determined the compensation applying the method of capitalisation of loss of dependency by taking Rs. 3, 600 as the annual loss of dependency and applying a multiplier of 20, the order of the High Court enhancing the compensation, we are constrained to say, does not contain any cogent reasons. The High Court does not discuss the evidence nor has recorded its own findings as to the quantum of the dependency lost. A global award was made on a reasoning which had better be stated in High Courts own words. "We have considered the memo of appeal, the award and also the monthly income as stated in the petition. We have also made necessary deduction for the personal expenses of the deceased and taking the expectancy of life at 65 years and deducting 30% for lump sum payment, in our opinion, a sum of Rs. 1, 50, 000 would be appropriate compensation in the present case Our attention has been drawn to page 9 of the impugned judgment. We are not sure how the calculation has been made by the learned Tribunal." * 8. This is all the reasoning in the judgment. We are afraid that the reasoning is incomplete and cannot by itself support the enhancement. The appropriate method of assessment of compensation is the method of capitalisation of net income choosing a multiplier appropriate to the age of the deceased or the age of the dependents whichever multiplier is lower. It is, no doubt, true that as a rough and ready measure, the method of aggregating the total expected income for the remainder of the life-expectancy with appropriate deductions towards uncertainties of life and for lumpsum payments is also resorted to. But this method is now considered unscientific and is virtually obsolete. At all events wherever it is resorted to it would require to be cross-checked with the results of the appropriate and the more scientific method of capitalisation of the loss of dependency. 9. In view of these deficiencies in the judgment we should have granted special leave. But then it is a hard case where a young life, the bread winner of a family, is snuffed out ere its prime as a result of the tragic accident. The claimants aver that the deceased was earning Rs. 1, 500 per month. Even if we assume as a rough and ready estimate Rs. 750 per month or Rs. 9, 000 per year as the loss of dependency - which may not be an unreasonable estimate - and capitalise it on a multiplier of 15 (which would be the appropriate multiplier having regard to the age of the deceased) the resultant figure will be 1, 35, 000. To this should be added the usual awards for loss to the estate and loss of consortium which are generally in conventional figures ranging from Rs. 5, 000 to Rs. 10, 000 on each count. If Rs. 7, 500 on each count is added, the qualification of Rs. 1, 50, 000 arrived at the High Court could be justified; though on a reasoning entirely different from any discernible or manifest from the appellate judgment of the High Court. | 1[ds]We are afraid that the reasoning is incomplete and cannot by itself support the enhancement. The appropriate method of assessment of compensation is the method of capitalisation of net income choosing a multiplier appropriate to the age of the deceased or the age of the dependents whichever multiplier is lower. It is, no doubt, true that as a rough and ready measure, the method of aggregating the total expected income for the remainder of they with appropriate deductions towards uncertainties of life and for lumpsum payments is also resorted to. But this method is now considered unscientific and is virtually obsolete. At all events wherever it is resorted to it would require to bed with the results of the appropriate and the more scientific method of capitalisation of the loss of dependency9. In view of these deficiencies in the judgment we should have granted special leave. But then it is a hard case where a young life, the bread winner of a family, is snuffed out ere its prime as a result of the tragic accident. The claimants aver that the deceased was earning Rs. 1, 500 per month. Even if we assume as a rough and ready estimate Rs. 750 per month or Rs. 9, 000 per year as the loss of dependencywhich may not be an unreasonable estimateand capitalise it on a multiplier of 15 (which would be the appropriate multiplier having regard to the age of the deceased) the resultant figure will be 1, 35, 000. To this should be added the usual awards for loss to the estate and loss of consortium which are generally in conventional figures ranging from Rs. 5, 000 to Rs. 10, 000 on each count. If Rs. 7, 500 on each count is added, the qualification of Rs. 1, 50, 000 arrived at the High Court could be justified; though on a reasoning entirely different from any discernible or manifest from the appellate judgment of the High Court | 1 | 1,164 | 367 | ### 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:
compensation in a fatal accidents action from Rs. 72, 000 awarded by the Motor Accident Claims Tribunal to Rs. 1, 50, 000 to the dependents of a certain Swapan Das, aged 26 years, who dies as a result of the injuries sustained in a motor accident that occurred on June 28, 1984 at Pagla Devta Bari on Assam-Agartala road when a truck hit him. 2. On April 24, 1990, some six years after the accident, a claim was brought by the parents as well as the widow of the deceased Swapan Das for a compensation of about Rs. 11, 00, 000. The deceased was said to be a dry fish manager earning about Rs. 1, 500 per month. The Tribunal did not accept this claim; but estimated the loss of dependency at Rs. 3, 600 annually and capitalised it on 20 years purchase value for arriving at the figure of Rs. 72, 000. This sum along with interest at the rate of 12% from the date of filing of the petition was awarded. 3. The respondents-claimants preferred an appeal before the High Court claiming enhancement. The High Court enhanced the compensation to Rs. 1, 50, 000. 4. Shri Jitender Sharma, learned senior counsel for the petitioner submitted that the claim was barred by time as, indeed, according to Shri Sharma, Section 166(3) of the Motor Vehicles Act, 1988 contemplates only a limited power of condonation of delay in filing a claim. That provision reads. "166. (3) No application for such compensation shall be entertained unless it is made within six months of the occurrence of the accident. Provided that the Claims Tribunal may entertain the application after the expiry of the said period of six months but not later than twelve months, if it is satisfied that the applicant was prevented by sufficient cause from making the application in time." * 5. Shri Sharma stated that the provisions in the 1988 Act in this behalf detract from their counterpart in the 1939 Act. He submitted that the position that even in respect of claims arising out of accidents occurring before the commencement of the 1988 Act but instituted after its commencement are governed by Section 166(3) of the 1988 Act is settled by a pronouncement of this Court in Vinod Gurudas Raikar v. National Insurance Co. Ltd. ( 1991 (4) SCC 33 ). 6. Shri Sharma is right in this submission. The pronouncement of this Court in Vinod Gurudas Raikar case ( 1991 (4) SCC 33 ) supports it; but this question had not been raise either before the Tribunal or the High Court. As the law on the matter is settled, it was not applied to the present claim as the petitioner did not raise it either before the Tribunal or before the High Court. 7. It is also true that while the Tribunal determined the compensation applying the method of capitalisation of loss of dependency by taking Rs. 3, 600 as the annual loss of dependency and applying a multiplier of 20, the order of the High Court enhancing the compensation, we are constrained to say, does not contain any cogent reasons. The High Court does not discuss the evidence nor has recorded its own findings as to the quantum of the dependency lost. A global award was made on a reasoning which had better be stated in High Courts own words. "We have considered the memo of appeal, the award and also the monthly income as stated in the petition. We have also made necessary deduction for the personal expenses of the deceased and taking the expectancy of life at 65 years and deducting 30% for lump sum payment, in our opinion, a sum of Rs. 1, 50, 000 would be appropriate compensation in the present case Our attention has been drawn to page 9 of the impugned judgment. We are not sure how the calculation has been made by the learned Tribunal." * 8. This is all the reasoning in the judgment. We are afraid that the reasoning is incomplete and cannot by itself support the enhancement. The appropriate method of assessment of compensation is the method of capitalisation of net income choosing a multiplier appropriate to the age of the deceased or the age of the dependents whichever multiplier is lower. It is, no doubt, true that as a rough and ready measure, the method of aggregating the total expected income for the remainder of the life-expectancy with appropriate deductions towards uncertainties of life and for lumpsum payments is also resorted to. But this method is now considered unscientific and is virtually obsolete. At all events wherever it is resorted to it would require to be cross-checked with the results of the appropriate and the more scientific method of capitalisation of the loss of dependency. 9. In view of these deficiencies in the judgment we should have granted special leave. But then it is a hard case where a young life, the bread winner of a family, is snuffed out ere its prime as a result of the tragic accident. The claimants aver that the deceased was earning Rs. 1, 500 per month. Even if we assume as a rough and ready estimate Rs. 750 per month or Rs. 9, 000 per year as the loss of dependency - which may not be an unreasonable estimate - and capitalise it on a multiplier of 15 (which would be the appropriate multiplier having regard to the age of the deceased) the resultant figure will be 1, 35, 000. To this should be added the usual awards for loss to the estate and loss of consortium which are generally in conventional figures ranging from Rs. 5, 000 to Rs. 10, 000 on each count. If Rs. 7, 500 on each count is added, the qualification of Rs. 1, 50, 000 arrived at the High Court could be justified; though on a reasoning entirely different from any discernible or manifest from the appellate judgment of the High Court.
### Response:
1
### Explanation:
We are afraid that the reasoning is incomplete and cannot by itself support the enhancement. The appropriate method of assessment of compensation is the method of capitalisation of net income choosing a multiplier appropriate to the age of the deceased or the age of the dependents whichever multiplier is lower. It is, no doubt, true that as a rough and ready measure, the method of aggregating the total expected income for the remainder of they with appropriate deductions towards uncertainties of life and for lumpsum payments is also resorted to. But this method is now considered unscientific and is virtually obsolete. At all events wherever it is resorted to it would require to bed with the results of the appropriate and the more scientific method of capitalisation of the loss of dependency9. In view of these deficiencies in the judgment we should have granted special leave. But then it is a hard case where a young life, the bread winner of a family, is snuffed out ere its prime as a result of the tragic accident. The claimants aver that the deceased was earning Rs. 1, 500 per month. Even if we assume as a rough and ready estimate Rs. 750 per month or Rs. 9, 000 per year as the loss of dependencywhich may not be an unreasonable estimateand capitalise it on a multiplier of 15 (which would be the appropriate multiplier having regard to the age of the deceased) the resultant figure will be 1, 35, 000. To this should be added the usual awards for loss to the estate and loss of consortium which are generally in conventional figures ranging from Rs. 5, 000 to Rs. 10, 000 on each count. If Rs. 7, 500 on each count is added, the qualification of Rs. 1, 50, 000 arrived at the High Court could be justified; though on a reasoning entirely different from any discernible or manifest from the appellate judgment of the High Court
|
MUNICIPAL CORPORATION OF GREATER MUMBAI (MCGM) Vs. ABHILASH LAL | constitutionality of directions issued by the Reserve Bank of India, through a circular of 12 th February, 2018 regulating resolution of stressed assets of debtors. This court elaborately dealt with provisions of the Banking Regulation Act, 1949 and the Reserve Bank of India Act, 1934 and held that the power to issue directions regarding initiation of insolvency proceedings vested in the RBI, subject to the approval of the Central Government. The court significantly held that the power was contained within the four corners of Section 35AA and observed as follows: A conspectus of all these provisions shows that the Banking Regulation Act specifies that the Central Government is either to exercise powers along with the RBI or by itself. The role assigned, therefore, by Section 35AA, when it comes to initiating the insolvency resolution process under the Insolvency Code, is thus, important. Without authorisation of the Central Government, obviously, no such directions can be issued. 30. The corollary of this is that prior to the enactment of Section 35AA, it may have been possible to say that when it comes to the RBI issuing directions to a banking company to initiate insolvency resolution process under the Insolvency Code, it could have issued such directions Under Sections 21 and 35A. But after Section 35AA, it may do so only within the four corners of Section 35AA. 31. The matter can be looked at from a slightly different angle. If a statute confers power to do a particular act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any manner other than that which has been prescribed. This is the well¬known Rule in Taylor v. Taylor, [1875] 1 Ch. D. 426, which has been repeatedly followed by this Court. Thus, in State of U.P. v. Singhara Singh, (1964) 4 SCR 485 , this Court held: The Rule adopted in Taylor v. Taylor [(1875) 1 Ch D 426, 431] is well recognised and is founded on sound principle. Its result is that if a statute has conferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. The principle behind the Rule is that if this were not so, the statutory provision might as well not have been enacted. A Magistrate, therefore, cannot in the course of investigation record a confession except in the manner laid down in Section 164. The power to record the confession had obviously been given so that the confession might be proved by the record of it made in the manner laid down. If proof of the confession by other means was permissible, the whole provision of Section 164 including the safeguards contained in it for the protection of Accused persons would be rendered nugatory. The section, therefore, by conferring on Magistrates the power to record statements or confessions, by necessary implication, prohibited a Magistrate from giving oral evidence of the statements or confessions made to him. (at pp. 490¬491) Following this principle, therefore, it is clear that the RBI can only direct banking institutions to move under the Insolvency Code if two conditions precedent are specified, namely, (i) that there is a Central Government authorisation to do so; and (ii) that it should be in respect of specific defaults. The Section, therefore, by necessary implication, prohibits this power from being exercised in any manner other than the manner set out in Section 35AA. 47. In the opinion of this court, Section 238 cannot be read as overriding the MCGMs right – indeed its public duty ¬ to control and regulate how its properties are to be dealt with. That exists in Sections 92 and 92A of the MMC Act. This court is of opinion that Section 238 could be of importance when the properties and assets are of a debtor and not when a third party like the MCGM is involved. Therefore, in the absence of approval in terms of Section 92 and 92A of the MMC Act, the adjudicating authority could not have overridden MCGMs objections and enabled the creation of a fresh interest in respect of its properties and lands. No doubt, the resolution plans talk of seeking MCGMs approval; they also acknowledge the liabilities of the corporate debtor; equally, however, there are proposals which envision the creation of charge or securities in respect of MCGMs properties. Nevertheless, the authorities under the Code could not have precluded the control that MCGM undoubtedly has, under law, to deal with its properties and the land in question- which undeniably are public properties. The resolution plan therefore, would be a serious impediment to MCGMs independent plans to ensure that public health amenities are developed in the manner it chooses, and for which fresh approval under the MMC Act may be forthcoming for a separate scheme formulated by that corporation (MCGM). 48. The last contention of the respondents, that MCGM was bound by the statement made by its counsel, in the opinion of this court, cannot prevail. As held earlier, there is no approval for the plan, in accordance with law; in such circumstances, the written plea accepting the plan, by a counsel or other representative who is not demonstrated to possess the power to bind MCGM, is inconclusive. In this regard, the court notices the well¬known principle that there can be no estoppel against the express provisions of law. (Ref. Kasinka Trading v. Union of India (1995) 1 SCC 274 , Darshan Oils (P) Ltd. v. Union of India (1995) 1 SCC 345 , Shrijee Sales Corporation v. Union of India (1997) 3 SCC 398 , Shree Sidhbali Steels Ltd. v. State of U.P. (2011) 3 SCC 193 , Pappu Sweets and Biscuits v. Commr. of Trade Tax, U.P. (1998) 7 SCC 228 and Commr. of Customs v. Dilip Kumar & Co. (2018) 9 SCC 1.) | 1[ds]32. A cumulative reading of the stipulations reveals that the contract/agreement contemplates that the lease deed was to be executed after the completion of the project. The contract reveals that (a) the project period was for 60 months starting from the date excluding the monsoon period; (b) by Clauses 5 and 17, SevenHills could mortgage the property for securing advances from financial institutions for the construction of the project and thereafter towards its working. Such mortgage/charge or interest was subject to approval by MCGM. In the event the contract was to be terminated, it was agreed that MCGM would not in any manner be liable towards the mortgaged amount and all its rights and ownership would continue to vest in it free from encumbrances (Clause 17)33. The show cause notice in this case preceded admission of the insolvency resolution process. In view of the clear conditions stipulated in the contract, MCGM reserved all its rights and its properties could not have therefore, in any manner, been affected by the resolution plan. Equally in the opinion of this Court, the adjudicating authority could not have approved the plan which implicates the assets of MCGM especially when SevenHills had not fulfilled its obligations under the contract34. The argument of the RP, the financial institutions (CoC), and the SNMC with regard to MCGMs interest not being affected, in this courts opinion is insubstantial. SNMCs proposed insolvency plan on the one hand no doubt provided for the liquidation of MCGMs liabilities initially to the tune of 102 crores (later revised to over ? 140 crores). However, the provisions of the resolution plan clearly ? contemplated infusion of capital to achieve its objectives. One of the modes spelt out in the plan for securing capital was mortgaging the land. Initially, no doubt, SNMC stepped into the shoes of SevenHills and assumed its control. What is important to notice is that the corporate restructuring was a way of taking over of the companys liquidation by SNMC as it was not only Seven Hills project with shares and liquidation of debts, but also the restructuring of the companys liabilities if necessary, by creating fresh debts and mortgage of the land which directly affected MCGMIt is a matter of record that in the present case, the resolution plan was never approved by the corporation and that it was put to vote. The contesting parties, including the RP and CoC were unable to point out to anything on the record to establish that a valid permission contemplated by Section 92 was ever obtained with regard to the proposal in the resolution plan. The proposal was approved by the NCLT and MCGMs appeal was rejected by NCLAT. The proposal could be approved only to the extent it did not result in encumbering the land belonging to MCGM36. It is evident from a plain reading of Section 92(c), that the Commissioner (of MCGM) is empowered to, with the sanction of the corporation, lease, sell or otherwise convey any immovable property belonging to the corporation. It is not in dispute that the original contract entered into on 20¬12¬2005 contemplated the fulfilment of some important conditions, including firstly, the completion of the hospital project within a time frame; and secondly, timely payment of annual lease rentals. It is a matter of record that the hospital project was scheduled to be completed by 24 th April, 2013. MCGM cites Clause 15(g) of the contract to urge that within a month of this event, i.e. completion of the hospital, a lease deed had to be executed. This event never took place. Therefore, the terms of the contract remained, in the opinion of the court, an agreement to enter into a lease; it did not per se confer any right or interest, except that in the event of MCGMs failure or omission to register the lease (in the event SevenHills had complied with its obligations under the contract), it could be sued for specific performance of the agreement, and compelled to execute a lease deed. That event did not occur; SevenHills did not complete construction of the 1600 bed hospital. Apparently, it did not even fulfill its commitment, or pay annual lease rentals. In these circumstances, MCGM was constrained to issue a show cause notice before the insolvency resolution process began, and before the moratorium was declared by NCLT on 13 th March, 2018. According to MCGM, in terms of Clause 26 (of the contract), even the agreement stood terminated due to default by SevenHills. This court does not propose to comment on that issue, as that is contentious and no finding has been recorded by either the adjudicating authority or the NCLAT41. The material placed on record by MCGM before this Court also reveals that the meeting held by the Corporation on 14 th December, 2018, referred back to the resolution proposal given by SNMC. The minutes of the meeting records that three members were unanimous in their view that since SevenHills had not complied with the terms and had even sought to encumber the property by mortgage, SNMC, a UAE based company, ought not be granted approval to take over the plot and proceed with its project47. In the opinion of this court, Section 238 cannot be read as overriding the MCGMs right – indeed its public duty ¬ to control and regulate how its properties are to be dealt with. That exists in Sections 92 and 92A of the MMC Act. This court is of opinion that Section 238 could be of importance when the properties and assets are of a debtor and not when a third party like the MCGM is involved. Therefore, in the absence of approval in terms of Section 92 and 92A of the MMC Act, the adjudicating authority could not have overridden MCGMs objections and enabled the creation of a fresh interest in respect of its properties and lands. No doubt, the resolution plans talk of seeking MCGMs approval; they also acknowledge the liabilities of the corporate debtor; equally, however, there are proposals which envision the creation of charge or securities in respect of MCGMs properties. Nevertheless, the authorities under the Code could not have precluded the control that MCGM undoubtedly has, under law, to deal with its properties and the land in question- which undeniably are public properties. The resolution plan therefore, would be a serious impediment to MCGMs independent plans to ensure that public health amenities are developed in the manner it chooses, and for which fresh approval under the MMC Act may be forthcoming for a separate scheme formulated by that corporation (MCGM)48. The last contention of the respondents, that MCGM was bound by the statement made by its counsel, in the opinion of this court, cannot prevail. As held earlier, there is no approval for the plan, in accordance with law; in such circumstances, the written plea accepting the plan, by a counsel or other representative who is not demonstrated to possess the power to bind MCGM, is inconclusive. In this regard, the court notices the well¬known principle that there can be no estoppel against the express provisions of law. (Ref. Kasinka Trading v. Union of India (1995) 1 SCC 274 , Darshan Oils (P) Ltd. v. Union of India (1995) 1 SCC 345 , Shrijee Sales Corporation v. Union of India (1997) 3 SCC 398 , Shree Sidhbali Steels Ltd. v. State of U.P. (2011) 3 SCC 193 , Pappu Sweets and Biscuits v. Commr. of Trade Tax, U.P. (1998) 7 SCC 228 and Commr. of Customs v. Dilip Kumar & Co. (2018) 9 SCC 1.) | 1 | 12,037 | 1,431 | ### 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:
constitutionality of directions issued by the Reserve Bank of India, through a circular of 12 th February, 2018 regulating resolution of stressed assets of debtors. This court elaborately dealt with provisions of the Banking Regulation Act, 1949 and the Reserve Bank of India Act, 1934 and held that the power to issue directions regarding initiation of insolvency proceedings vested in the RBI, subject to the approval of the Central Government. The court significantly held that the power was contained within the four corners of Section 35AA and observed as follows: A conspectus of all these provisions shows that the Banking Regulation Act specifies that the Central Government is either to exercise powers along with the RBI or by itself. The role assigned, therefore, by Section 35AA, when it comes to initiating the insolvency resolution process under the Insolvency Code, is thus, important. Without authorisation of the Central Government, obviously, no such directions can be issued. 30. The corollary of this is that prior to the enactment of Section 35AA, it may have been possible to say that when it comes to the RBI issuing directions to a banking company to initiate insolvency resolution process under the Insolvency Code, it could have issued such directions Under Sections 21 and 35A. But after Section 35AA, it may do so only within the four corners of Section 35AA. 31. The matter can be looked at from a slightly different angle. If a statute confers power to do a particular act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any manner other than that which has been prescribed. This is the well¬known Rule in Taylor v. Taylor, [1875] 1 Ch. D. 426, which has been repeatedly followed by this Court. Thus, in State of U.P. v. Singhara Singh, (1964) 4 SCR 485 , this Court held: The Rule adopted in Taylor v. Taylor [(1875) 1 Ch D 426, 431] is well recognised and is founded on sound principle. Its result is that if a statute has conferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. The principle behind the Rule is that if this were not so, the statutory provision might as well not have been enacted. A Magistrate, therefore, cannot in the course of investigation record a confession except in the manner laid down in Section 164. The power to record the confession had obviously been given so that the confession might be proved by the record of it made in the manner laid down. If proof of the confession by other means was permissible, the whole provision of Section 164 including the safeguards contained in it for the protection of Accused persons would be rendered nugatory. The section, therefore, by conferring on Magistrates the power to record statements or confessions, by necessary implication, prohibited a Magistrate from giving oral evidence of the statements or confessions made to him. (at pp. 490¬491) Following this principle, therefore, it is clear that the RBI can only direct banking institutions to move under the Insolvency Code if two conditions precedent are specified, namely, (i) that there is a Central Government authorisation to do so; and (ii) that it should be in respect of specific defaults. The Section, therefore, by necessary implication, prohibits this power from being exercised in any manner other than the manner set out in Section 35AA. 47. In the opinion of this court, Section 238 cannot be read as overriding the MCGMs right – indeed its public duty ¬ to control and regulate how its properties are to be dealt with. That exists in Sections 92 and 92A of the MMC Act. This court is of opinion that Section 238 could be of importance when the properties and assets are of a debtor and not when a third party like the MCGM is involved. Therefore, in the absence of approval in terms of Section 92 and 92A of the MMC Act, the adjudicating authority could not have overridden MCGMs objections and enabled the creation of a fresh interest in respect of its properties and lands. No doubt, the resolution plans talk of seeking MCGMs approval; they also acknowledge the liabilities of the corporate debtor; equally, however, there are proposals which envision the creation of charge or securities in respect of MCGMs properties. Nevertheless, the authorities under the Code could not have precluded the control that MCGM undoubtedly has, under law, to deal with its properties and the land in question- which undeniably are public properties. The resolution plan therefore, would be a serious impediment to MCGMs independent plans to ensure that public health amenities are developed in the manner it chooses, and for which fresh approval under the MMC Act may be forthcoming for a separate scheme formulated by that corporation (MCGM). 48. The last contention of the respondents, that MCGM was bound by the statement made by its counsel, in the opinion of this court, cannot prevail. As held earlier, there is no approval for the plan, in accordance with law; in such circumstances, the written plea accepting the plan, by a counsel or other representative who is not demonstrated to possess the power to bind MCGM, is inconclusive. In this regard, the court notices the well¬known principle that there can be no estoppel against the express provisions of law. (Ref. Kasinka Trading v. Union of India (1995) 1 SCC 274 , Darshan Oils (P) Ltd. v. Union of India (1995) 1 SCC 345 , Shrijee Sales Corporation v. Union of India (1997) 3 SCC 398 , Shree Sidhbali Steels Ltd. v. State of U.P. (2011) 3 SCC 193 , Pappu Sweets and Biscuits v. Commr. of Trade Tax, U.P. (1998) 7 SCC 228 and Commr. of Customs v. Dilip Kumar & Co. (2018) 9 SCC 1.)
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of the resolution plan clearly ? contemplated infusion of capital to achieve its objectives. One of the modes spelt out in the plan for securing capital was mortgaging the land. Initially, no doubt, SNMC stepped into the shoes of SevenHills and assumed its control. What is important to notice is that the corporate restructuring was a way of taking over of the companys liquidation by SNMC as it was not only Seven Hills project with shares and liquidation of debts, but also the restructuring of the companys liabilities if necessary, by creating fresh debts and mortgage of the land which directly affected MCGMIt is a matter of record that in the present case, the resolution plan was never approved by the corporation and that it was put to vote. The contesting parties, including the RP and CoC were unable to point out to anything on the record to establish that a valid permission contemplated by Section 92 was ever obtained with regard to the proposal in the resolution plan. The proposal was approved by the NCLT and MCGMs appeal was rejected by NCLAT. The proposal could be approved only to the extent it did not result in encumbering the land belonging to MCGM36. It is evident from a plain reading of Section 92(c), that the Commissioner (of MCGM) is empowered to, with the sanction of the corporation, lease, sell or otherwise convey any immovable property belonging to the corporation. It is not in dispute that the original contract entered into on 20¬12¬2005 contemplated the fulfilment of some important conditions, including firstly, the completion of the hospital project within a time frame; and secondly, timely payment of annual lease rentals. It is a matter of record that the hospital project was scheduled to be completed by 24 th April, 2013. MCGM cites Clause 15(g) of the contract to urge that within a month of this event, i.e. completion of the hospital, a lease deed had to be executed. This event never took place. Therefore, the terms of the contract remained, in the opinion of the court, an agreement to enter into a lease; it did not per se confer any right or interest, except that in the event of MCGMs failure or omission to register the lease (in the event SevenHills had complied with its obligations under the contract), it could be sued for specific performance of the agreement, and compelled to execute a lease deed. That event did not occur; SevenHills did not complete construction of the 1600 bed hospital. Apparently, it did not even fulfill its commitment, or pay annual lease rentals. In these circumstances, MCGM was constrained to issue a show cause notice before the insolvency resolution process began, and before the moratorium was declared by NCLT on 13 th March, 2018. According to MCGM, in terms of Clause 26 (of the contract), even the agreement stood terminated due to default by SevenHills. This court does not propose to comment on that issue, as that is contentious and no finding has been recorded by either the adjudicating authority or the NCLAT41. The material placed on record by MCGM before this Court also reveals that the meeting held by the Corporation on 14 th December, 2018, referred back to the resolution proposal given by SNMC. The minutes of the meeting records that three members were unanimous in their view that since SevenHills had not complied with the terms and had even sought to encumber the property by mortgage, SNMC, a UAE based company, ought not be granted approval to take over the plot and proceed with its project47. In the opinion of this court, Section 238 cannot be read as overriding the MCGMs right – indeed its public duty ¬ to control and regulate how its properties are to be dealt with. That exists in Sections 92 and 92A of the MMC Act. This court is of opinion that Section 238 could be of importance when the properties and assets are of a debtor and not when a third party like the MCGM is involved. Therefore, in the absence of approval in terms of Section 92 and 92A of the MMC Act, the adjudicating authority could not have overridden MCGMs objections and enabled the creation of a fresh interest in respect of its properties and lands. No doubt, the resolution plans talk of seeking MCGMs approval; they also acknowledge the liabilities of the corporate debtor; equally, however, there are proposals which envision the creation of charge or securities in respect of MCGMs properties. Nevertheless, the authorities under the Code could not have precluded the control that MCGM undoubtedly has, under law, to deal with its properties and the land in question- which undeniably are public properties. The resolution plan therefore, would be a serious impediment to MCGMs independent plans to ensure that public health amenities are developed in the manner it chooses, and for which fresh approval under the MMC Act may be forthcoming for a separate scheme formulated by that corporation (MCGM)48. The last contention of the respondents, that MCGM was bound by the statement made by its counsel, in the opinion of this court, cannot prevail. As held earlier, there is no approval for the plan, in accordance with law; in such circumstances, the written plea accepting the plan, by a counsel or other representative who is not demonstrated to possess the power to bind MCGM, is inconclusive. In this regard, the court notices the well¬known principle that there can be no estoppel against the express provisions of law. (Ref. Kasinka Trading v. Union of India (1995) 1 SCC 274 , Darshan Oils (P) Ltd. v. Union of India (1995) 1 SCC 345 , Shrijee Sales Corporation v. Union of India (1997) 3 SCC 398 , Shree Sidhbali Steels Ltd. v. State of U.P. (2011) 3 SCC 193 , Pappu Sweets and Biscuits v. Commr. of Trade Tax, U.P. (1998) 7 SCC 228 and Commr. of Customs v. Dilip Kumar & Co. (2018) 9 SCC 1.)
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Yograj Infras.Ltd Vs. Ssamg Yong Eng.& Constrn.Co.Ltd | petition under Section 482 of the Code of Criminal Procedure in the Jabalpur Bench of the Madhya Pradesh High Court, for quashing of the cognizance taken by the learned Magistrate. The High Court by its order dated 13th October, 2010, quashed the criminal proceedings commenced against the Respondent No.1. Challenging the said order of the High Court, the Petitioner filed Special Leave Petition (Crl) No. Crl. M.P. 2872 of 2011, which was dismissed by this Court on 18th February, 2011. On account of the above, an application for early hearing and disposal of the Special Leave Petition was filed on behalf of the Respondent No.1 urging that since the allegation of fraud had already been decided by this Court, the present Special Leave Petition could be finally disposed of in view of order passed by this Court in Special Leave Petition (Crl) No. Crl. M.P. 2872 of 2011. It is in this background that the present I.A. has been filed for early hearing and disposal of the Special Leave Petition. 7. Appearing for the Special Leave Petitioner, who is the opposite party in the Interlocutory Application filed on behalf of the Respondent No.1, Mr. Jaideep Gupta, learned Senior Advocate, contended that the stay order passed in these proceedings was liable to be continued in view of the special equities in this case. He submitted that the Petitioner Company had invested large sums of money in the project and upon termination of the contract, the dues of either party were yet to be decided and the same could only be done at the time of the final Award. Mr. Gupta submitted that his main emphasis in the Special Leave Petition was with regard to the special equities which existed and the order of stay granted by this Court restraining the Respondent No.1 Company from invoking the Bank Guarantees was liable to be continued till the passing of the final Award by the learned Arbitrator. 8. Ms. Meenakshi Arora, learned Advocate, who appeared for the Respondent Company, submitted that the prayer made on behalf of the Petitioner in the Section 9 application before the District Court, Narsinghpur, seeking injunction against the Respondent No.1 from invoking the Bank Guarantees, was dismissed by the District Judge on 4th March, 2010, and the Appeal therefrom was dismissed by the Jabalpur Bench of the Madhya Pradesh High Court on 20th August, 2010. However, this Court had stayed the invocation of the Bank Guarantees by the Respondent No.1 Company by an interim order dated 31st August, 2010. Ms. Arora submitted that once the cognizance taken by the magistrate on the petitioners criminal complaint alleging fraud on the part of the Respondent No.1 was quashed by the Jabalpur Bench of the Madhya Pradesh High Court by its order dated 13th October, 2010, and even the Special Leave Petition preferred therefrom was dismissed by this Court on 18th February, 2011, the very basis for seeking injunction in the proceedings under Section 9 of the Arbitration and Conciliation Act, 1996, stood removed. Ms. Arora submitted that in addition to the above, a partial Award had been made by the Arbitral Tribunal in Singapore on 30th June, 2011, in favour of the Respondent No.1. Ms. Arora submitted that in terms of the agreement between the parties, the Respondent No.1 Company had made huge cash advances to the Petitioner for completion of the project, but the same had not been fully repaid by the Petitioner and that as a result, the Respondent No.1 should be permitted to invoke the Bank Guarantees to realize the outstanding amounts. According to Ms. Arora, the dues of the Respondent No.1 Company were far beyond those claimed by the Petitioner. Ms. Arora submitted that since the partial Award had not been challenged by the Petitioner, the execution thereof could not be stayed and the Respondent No.1 was, therefore, entitled to recover the amount under the partial Award. According to Ms. Arora, the plea taken by the Petitioner in the criminal complaint and the present Special Leave Petition was the same and since the allegation of fraud against the Respondent No.1 by the Petitioner has been negated, the interim order restraining the Respondent No.1 from invoking the Bank Guarantees was liable to be vacated. 9. Ms. Arora submitted that since payment under a Bank Guarantee can normally be stopped only on two grounds and on no other, viz., on grounds of fraud and special equity, and the ground of fraud having been rejected upto this Court, the only other ground available to the Petitioner to stop the invocation of the Bank Guarantees was on account of special equities and in the instant case the Petitioner had failed to indicate any such special equity which entitled the Petitioner to an order of restraint against the Respondent No.1 from invoking the Bank Guarantees in question. 10. Having heard learned counsel for the parties, we are inclined to accept Ms. Meenakshi Aroras submissions that since the Petitioners application under Section 9 of the Arbitration and Conciliation Act, 1996, was based mainly on allegations of fraud, which have been rejected, there was no foundation for the stay order passed in these proceedings to continue. We cannot lose sight of the fact that both in the criminal proceedings as also in the proceedings under Section 9 of the aforesaid Act, the Petitioner proved to be unsuccessful, at least upto the High Court stage. In the criminal proceedings, the Petitioner was unsuccessful right upto this Court. In the aforesaid circumstances, we are unable to accept the submissions relating to special equities urged by Mr. Jaideep Gupta, particularly in view of the fact that such a point had not been raised earlier. 11. In addition to the above, we also have to keep in mind the fact that a partial Award has been made by the Arbitral Tribunal which has not been questioned or challenged by the Petitioner and the Respondent No.1 is entitled to the amount awarded in the partial Award. 12. Accordingly, we | 0[ds]Petitioners application under Section 9 of the Arbitration and Conciliation Act, 1996, was based mainly on allegations of fraud, which have been rejected, there was no foundation for the stay order passed in these proceedings to continue. We cannot lose sight of the fact that both in the criminal proceedings as also in the proceedings under Section 9 of the aforesaid Act, the Petitioner proved to be unsuccessful, at least upto the High Court stage. In the criminal proceedings, the Petitioner was unsuccessful right upto this Court. | 0 | 1,905 | 102 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
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petition under Section 482 of the Code of Criminal Procedure in the Jabalpur Bench of the Madhya Pradesh High Court, for quashing of the cognizance taken by the learned Magistrate. The High Court by its order dated 13th October, 2010, quashed the criminal proceedings commenced against the Respondent No.1. Challenging the said order of the High Court, the Petitioner filed Special Leave Petition (Crl) No. Crl. M.P. 2872 of 2011, which was dismissed by this Court on 18th February, 2011. On account of the above, an application for early hearing and disposal of the Special Leave Petition was filed on behalf of the Respondent No.1 urging that since the allegation of fraud had already been decided by this Court, the present Special Leave Petition could be finally disposed of in view of order passed by this Court in Special Leave Petition (Crl) No. Crl. M.P. 2872 of 2011. It is in this background that the present I.A. has been filed for early hearing and disposal of the Special Leave Petition. 7. Appearing for the Special Leave Petitioner, who is the opposite party in the Interlocutory Application filed on behalf of the Respondent No.1, Mr. Jaideep Gupta, learned Senior Advocate, contended that the stay order passed in these proceedings was liable to be continued in view of the special equities in this case. He submitted that the Petitioner Company had invested large sums of money in the project and upon termination of the contract, the dues of either party were yet to be decided and the same could only be done at the time of the final Award. Mr. Gupta submitted that his main emphasis in the Special Leave Petition was with regard to the special equities which existed and the order of stay granted by this Court restraining the Respondent No.1 Company from invoking the Bank Guarantees was liable to be continued till the passing of the final Award by the learned Arbitrator. 8. Ms. Meenakshi Arora, learned Advocate, who appeared for the Respondent Company, submitted that the prayer made on behalf of the Petitioner in the Section 9 application before the District Court, Narsinghpur, seeking injunction against the Respondent No.1 from invoking the Bank Guarantees, was dismissed by the District Judge on 4th March, 2010, and the Appeal therefrom was dismissed by the Jabalpur Bench of the Madhya Pradesh High Court on 20th August, 2010. However, this Court had stayed the invocation of the Bank Guarantees by the Respondent No.1 Company by an interim order dated 31st August, 2010. Ms. Arora submitted that once the cognizance taken by the magistrate on the petitioners criminal complaint alleging fraud on the part of the Respondent No.1 was quashed by the Jabalpur Bench of the Madhya Pradesh High Court by its order dated 13th October, 2010, and even the Special Leave Petition preferred therefrom was dismissed by this Court on 18th February, 2011, the very basis for seeking injunction in the proceedings under Section 9 of the Arbitration and Conciliation Act, 1996, stood removed. Ms. Arora submitted that in addition to the above, a partial Award had been made by the Arbitral Tribunal in Singapore on 30th June, 2011, in favour of the Respondent No.1. Ms. Arora submitted that in terms of the agreement between the parties, the Respondent No.1 Company had made huge cash advances to the Petitioner for completion of the project, but the same had not been fully repaid by the Petitioner and that as a result, the Respondent No.1 should be permitted to invoke the Bank Guarantees to realize the outstanding amounts. According to Ms. Arora, the dues of the Respondent No.1 Company were far beyond those claimed by the Petitioner. Ms. Arora submitted that since the partial Award had not been challenged by the Petitioner, the execution thereof could not be stayed and the Respondent No.1 was, therefore, entitled to recover the amount under the partial Award. According to Ms. Arora, the plea taken by the Petitioner in the criminal complaint and the present Special Leave Petition was the same and since the allegation of fraud against the Respondent No.1 by the Petitioner has been negated, the interim order restraining the Respondent No.1 from invoking the Bank Guarantees was liable to be vacated. 9. Ms. Arora submitted that since payment under a Bank Guarantee can normally be stopped only on two grounds and on no other, viz., on grounds of fraud and special equity, and the ground of fraud having been rejected upto this Court, the only other ground available to the Petitioner to stop the invocation of the Bank Guarantees was on account of special equities and in the instant case the Petitioner had failed to indicate any such special equity which entitled the Petitioner to an order of restraint against the Respondent No.1 from invoking the Bank Guarantees in question. 10. Having heard learned counsel for the parties, we are inclined to accept Ms. Meenakshi Aroras submissions that since the Petitioners application under Section 9 of the Arbitration and Conciliation Act, 1996, was based mainly on allegations of fraud, which have been rejected, there was no foundation for the stay order passed in these proceedings to continue. We cannot lose sight of the fact that both in the criminal proceedings as also in the proceedings under Section 9 of the aforesaid Act, the Petitioner proved to be unsuccessful, at least upto the High Court stage. In the criminal proceedings, the Petitioner was unsuccessful right upto this Court. In the aforesaid circumstances, we are unable to accept the submissions relating to special equities urged by Mr. Jaideep Gupta, particularly in view of the fact that such a point had not been raised earlier. 11. In addition to the above, we also have to keep in mind the fact that a partial Award has been made by the Arbitral Tribunal which has not been questioned or challenged by the Petitioner and the Respondent No.1 is entitled to the amount awarded in the partial Award. 12. Accordingly, we
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Petitioners application under Section 9 of the Arbitration and Conciliation Act, 1996, was based mainly on allegations of fraud, which have been rejected, there was no foundation for the stay order passed in these proceedings to continue. We cannot lose sight of the fact that both in the criminal proceedings as also in the proceedings under Section 9 of the aforesaid Act, the Petitioner proved to be unsuccessful, at least upto the High Court stage. In the criminal proceedings, the Petitioner was unsuccessful right upto this Court.
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Union Of India And Others Vs. S.L. Dutta And Others | not powerless. The Union of India having framed a policy relieved itself of the charge of acting capriciously or arbitrarily or in response to any ulterior considerations so long as it pursued a consistent policy." * 16. Mr. Datar, learned counsel for respondent 1 did not dispute that, normally, it was not for the court to consider the wisdom or appropriateness of a particular policy, particularly in cases where expert knowledge was required in the formulation of the policy and considering the appropriateness of the policy. It was, however, submitted by him that once a policy was settled the government was bound to follow that policy and that, if the policy had to be charged, this could be done only on a proper consideration of the relevant material and could not be resorted to for ulterior purposes or mala fide nor could the policy be changed arbitrarily. He placed reliance on the judgment of this Court in case of A. S. Sangwan 1980 Supp(SCC) 559, 561 : 1981 SCC(L&S) 378), discussed earlier. What is, however, significant is that in that very judgment this Court held (See para 4 of the aforesaid report) that a policy once formulated is not good for ever; it is perfectly within the competence of the Union of Indian to change it, rechange it, adjust it and readjust it according to the compulsions of circumstances and the imperatives of national considerations. That judgment, therefore, is of no avail to the appellant17. It was urged by Mr. Datar that, in the present case, by the change of policy the chances of an Air Vice-Marshal from the Navigation Stream of the Air Force to get promoted to the post of an Air Marshal were severely curtailed as the number of posts available to them for promotion was reduced to two apart from the two rotational post. It was urged by him that this could, in law, be regarded as a change in the conditions of service of the officers in the Navigation Stream in the Air Force. We are not able to accept this contention. In our opinion, what was affected by the change of policy were merely the chances of promotion of the Air Vice-Marshals in the Navigation Stream. As far as the posts of Air Marshals open to the Air Vice-Marshals in the said stream were concerned, their right or eligibility to be considered for promotion still remained and hence, there was no change in their conditions of service 18. It was next submitted by learned counsel that no minutes of what transpired at the meeting of the Air Marshals which approved the change of policy, were produced before the court and hence, the court was not in a position to decide whether the charge of policy was justified. He contended that it was significant that one Air Marshal from the Navigation Branch had opposed the change in the policy. It was also pointed out by him that, at one stage, the Government of India was not willing to adopt the change of policy but had changed its mind later on and the reasons for this change were not on record. It was submitted by him that these circumstances showed that the charge of policy was arbitrary. It was urged by him that the impugned judgment of the High Court was correct, as it was based on these consideration. He, however, made it clear that he was not pressing any allegation of mala fide which might be contained in the petition. In our opinion, the High Court was in error in making the impugned order. As has been laid down more than once by this Court, the court should rarely interfere where the question of validity of a particular policy is in question and all the more so where considerable material in the fixing of policy are of a highly technical or scientific nature. A consideration of a policy followed in the Indian Air Force regarding the promotional chances of officers in the Navigation Stream of the Flying Branch in the Air Force qua the other branches would necessarily involve scrutiny of the desirability of such a charge which would require considerable knowledge of modern aircraft, scientific and technical equipment available in such aircraft to guide in navigating the same, tactics to be followed by the Indian Air Force and so on. These are matters regarding which judges and the lawyers of courts can hardly be expected to have much knowledge by reasons of their training and experience. In the present case there is no question of arbitrary departure from the policy duly adopted because before the decision not to promote respondent 1 was taken, the policy had already been changed. The question is, therefore, whether this change can be said to be arbitrary or mala fide. As we have already pointed out, we are not in a position to hold that this change of policy was not warranted by the circumstances prevailing. As the matter was considered at some length by as many as 12 Air Marshals and the Chief of Air Staff of Indian Air Force, it is not possible to say that the question of change of policy was not duly considered. Mere non-availability of the minutes setting out the discussion, is of no relevance. In fact, it would perhaps be detrimental to the interest of the country if these matters were not kept confidential. We cannot assume that what was discussed at this meeting was not relevant to the decision regarding the change of policy. It may be that at one time the Ministry of Defence was not agreeable to accept the proposal for this change of policy but on further consideration accepted it. However, this could well show that before accepting the change of policy the Ministry of Defence and the experts attached to it gave full consideration to the requirements of the change. We cannot on the basis of this circumstance alone hold that the change of policy was arbitrary | 1[ds]In our opinion, we are not called upon to go into the consideration of the question whether the importance of the Navigation Branch in the Air Force has really been reduced as contended by the appellants because such consideration would involve several technical aspects which we are not competent to deal with and much of the material required to be considered might be of a sensitive and secret nature which it would not be proper to ask the Union of India or the Ministry of Defence to disclose, as such disclosure might adversely affect the safety and security of the country. It appears that the change of policy and reasons for the same were discussed at a meeting of the Air Marshals and the Chief of Air Staff who hold the rank of Air Chief Marshal. The minutes of the meeting are not available in court and we do not wish to call for them because some of the matters discussed in the meeting might be of a confidential or sensitive nature, as we have pointed out. Moreover, several of the matters discussed might be too technical for us to appreciatee are not able to accept this contention. In our opinion, what was affected by the change of policy were merely the chances of promotion of the Air Vice-Marshals in the Navigation Stream. As far as the posts of Air Marshals open to the Air Vice-Marshals in the said stream were concerned, their right or eligibility to be considered for promotion still remained and hence, there was no change in their conditions ofthe present case there is no question of arbitrary departure from the policy duly adopted because before the decision not to promote respondent 1 was taken, the policy had already been changed. The question is, therefore, whether this change can be said to be arbitrary or mala fide. As we have already pointed out, we are not in a position to hold that this change of policy was not warranted by the circumstances prevailing. As the matter was considered at some length by as many as 12 Air Marshals and the Chief of Air Staff of Indian Air Force, it is not possible to say that the question of change of policy was not duly considered. Mere non-availability of the minutes setting out the discussion, is of no relevance. In fact, it would perhaps be detrimental to the interest of the country if these matters were not kept confidential. We cannot assume that what was discussed at this meeting was not relevant to the decision regarding the change of policy. It may be that at one time the Ministry of Defence was not agreeable to accept the proposal for this change of policy but on further consideration accepted it. However, this could well show that before accepting the change of policy the Ministry of Defence and the experts attached to it gave full consideration to the requirements of the change. We cannot on the basis of this circumstance alone hold that the change of policy was arbitrary | 1 | 3,587 | 544 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
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not powerless. The Union of India having framed a policy relieved itself of the charge of acting capriciously or arbitrarily or in response to any ulterior considerations so long as it pursued a consistent policy." * 16. Mr. Datar, learned counsel for respondent 1 did not dispute that, normally, it was not for the court to consider the wisdom or appropriateness of a particular policy, particularly in cases where expert knowledge was required in the formulation of the policy and considering the appropriateness of the policy. It was, however, submitted by him that once a policy was settled the government was bound to follow that policy and that, if the policy had to be charged, this could be done only on a proper consideration of the relevant material and could not be resorted to for ulterior purposes or mala fide nor could the policy be changed arbitrarily. He placed reliance on the judgment of this Court in case of A. S. Sangwan 1980 Supp(SCC) 559, 561 : 1981 SCC(L&S) 378), discussed earlier. What is, however, significant is that in that very judgment this Court held (See para 4 of the aforesaid report) that a policy once formulated is not good for ever; it is perfectly within the competence of the Union of Indian to change it, rechange it, adjust it and readjust it according to the compulsions of circumstances and the imperatives of national considerations. That judgment, therefore, is of no avail to the appellant17. It was urged by Mr. Datar that, in the present case, by the change of policy the chances of an Air Vice-Marshal from the Navigation Stream of the Air Force to get promoted to the post of an Air Marshal were severely curtailed as the number of posts available to them for promotion was reduced to two apart from the two rotational post. It was urged by him that this could, in law, be regarded as a change in the conditions of service of the officers in the Navigation Stream in the Air Force. We are not able to accept this contention. In our opinion, what was affected by the change of policy were merely the chances of promotion of the Air Vice-Marshals in the Navigation Stream. As far as the posts of Air Marshals open to the Air Vice-Marshals in the said stream were concerned, their right or eligibility to be considered for promotion still remained and hence, there was no change in their conditions of service 18. It was next submitted by learned counsel that no minutes of what transpired at the meeting of the Air Marshals which approved the change of policy, were produced before the court and hence, the court was not in a position to decide whether the charge of policy was justified. He contended that it was significant that one Air Marshal from the Navigation Branch had opposed the change in the policy. It was also pointed out by him that, at one stage, the Government of India was not willing to adopt the change of policy but had changed its mind later on and the reasons for this change were not on record. It was submitted by him that these circumstances showed that the charge of policy was arbitrary. It was urged by him that the impugned judgment of the High Court was correct, as it was based on these consideration. He, however, made it clear that he was not pressing any allegation of mala fide which might be contained in the petition. In our opinion, the High Court was in error in making the impugned order. As has been laid down more than once by this Court, the court should rarely interfere where the question of validity of a particular policy is in question and all the more so where considerable material in the fixing of policy are of a highly technical or scientific nature. A consideration of a policy followed in the Indian Air Force regarding the promotional chances of officers in the Navigation Stream of the Flying Branch in the Air Force qua the other branches would necessarily involve scrutiny of the desirability of such a charge which would require considerable knowledge of modern aircraft, scientific and technical equipment available in such aircraft to guide in navigating the same, tactics to be followed by the Indian Air Force and so on. These are matters regarding which judges and the lawyers of courts can hardly be expected to have much knowledge by reasons of their training and experience. In the present case there is no question of arbitrary departure from the policy duly adopted because before the decision not to promote respondent 1 was taken, the policy had already been changed. The question is, therefore, whether this change can be said to be arbitrary or mala fide. As we have already pointed out, we are not in a position to hold that this change of policy was not warranted by the circumstances prevailing. As the matter was considered at some length by as many as 12 Air Marshals and the Chief of Air Staff of Indian Air Force, it is not possible to say that the question of change of policy was not duly considered. Mere non-availability of the minutes setting out the discussion, is of no relevance. In fact, it would perhaps be detrimental to the interest of the country if these matters were not kept confidential. We cannot assume that what was discussed at this meeting was not relevant to the decision regarding the change of policy. It may be that at one time the Ministry of Defence was not agreeable to accept the proposal for this change of policy but on further consideration accepted it. However, this could well show that before accepting the change of policy the Ministry of Defence and the experts attached to it gave full consideration to the requirements of the change. We cannot on the basis of this circumstance alone hold that the change of policy was arbitrary
### Response:
1
### Explanation:
In our opinion, we are not called upon to go into the consideration of the question whether the importance of the Navigation Branch in the Air Force has really been reduced as contended by the appellants because such consideration would involve several technical aspects which we are not competent to deal with and much of the material required to be considered might be of a sensitive and secret nature which it would not be proper to ask the Union of India or the Ministry of Defence to disclose, as such disclosure might adversely affect the safety and security of the country. It appears that the change of policy and reasons for the same were discussed at a meeting of the Air Marshals and the Chief of Air Staff who hold the rank of Air Chief Marshal. The minutes of the meeting are not available in court and we do not wish to call for them because some of the matters discussed in the meeting might be of a confidential or sensitive nature, as we have pointed out. Moreover, several of the matters discussed might be too technical for us to appreciatee are not able to accept this contention. In our opinion, what was affected by the change of policy were merely the chances of promotion of the Air Vice-Marshals in the Navigation Stream. As far as the posts of Air Marshals open to the Air Vice-Marshals in the said stream were concerned, their right or eligibility to be considered for promotion still remained and hence, there was no change in their conditions ofthe present case there is no question of arbitrary departure from the policy duly adopted because before the decision not to promote respondent 1 was taken, the policy had already been changed. The question is, therefore, whether this change can be said to be arbitrary or mala fide. As we have already pointed out, we are not in a position to hold that this change of policy was not warranted by the circumstances prevailing. As the matter was considered at some length by as many as 12 Air Marshals and the Chief of Air Staff of Indian Air Force, it is not possible to say that the question of change of policy was not duly considered. Mere non-availability of the minutes setting out the discussion, is of no relevance. In fact, it would perhaps be detrimental to the interest of the country if these matters were not kept confidential. We cannot assume that what was discussed at this meeting was not relevant to the decision regarding the change of policy. It may be that at one time the Ministry of Defence was not agreeable to accept the proposal for this change of policy but on further consideration accepted it. However, this could well show that before accepting the change of policy the Ministry of Defence and the experts attached to it gave full consideration to the requirements of the change. We cannot on the basis of this circumstance alone hold that the change of policy was arbitrary
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City Montessori School Vs. State of Uttar Pradesh & Others | same would lead to a useless formality or that the person concerned, in fact, did not suffer any prejudice. It is trite that a party may waive his right of hearing by his conduct. It is furthermore well settled that a fact admitted need not be proved. Indisputably, the appellant was a party to the decision. The decision was based on the consent of the respondents which, in the facts and circumstances of this case, must be held to have included the appellants herein also. 25. A judgment rendered by a court of law and in particular a consent order, it is trite, must not only be construed in its entirety but also having regard to the pleadings and conduct of the parties. {See N.K. Rajgarhia v. Mahavir Plantation Ltd. [(2006) 1 SCC 502 paragraph 19] 26.Judgment on consent in this case was passed only in view of Section 48(1) of the Act and not on any other premise. Appellant is the only beneficiary of the said order as by reason thereof, the judgment of the High Court in respect of 17,000 sq. ft. of land was set aside. By reason thereof, the possession of the appellant was protected as otherwise it was bound to hand over the vacant possession to the landladies pursuant to the order of eviction. For the aforementioned purpose, thus, the proceedings before this Court assume significance. We have noticed hereinbefore that the question as to whether such a notification can be issued was debated. The State of Uttar Pradesh has been given opportunity after opportunity therefor. The Chief Secretary was also asked to remain personally present. 27. Only thereafter, the notification under Section 48 of the Act was issued. Appellants do not say nor does it appear from the record that at any point of time it raised any protest. In fact, it must be held to have accepted the suggestion whether emanating from this Court or from the State of Uttar Pradesh without any demur whatsoever. It is in the aforementioned situation, the doctrine that a person cannot be permitted to approbate or reprobate at the same time must be invoked. In Nagubai Ammal & Ors. v. B. Shama Rao & Ors. [1956 SCR 451], this Court held: "But it is argued by Sri Krishnaswami Ayyangar that as the proceedings in OS No. 92 of 1938-39 are relied on as barring the plea that the decree and sale in OS No. 100 of 1919-20 are not collusive, not on the ground of res judicata or estoppel but on the principle that a person cannot both approbate and reprobate, it is immaterial that the present appellants were not parties thereto, and the decision in Verschures Creameries Ltd. v. Hull and Netherlands Steamship Company Ltd. and in particular, the observations of Scrutton, L.J., at page 611 were quoted in support of this position. There, the facts were that an agent delivered goods to the customer contrary to the instructions of the principal, who thereafter filed a suit against the purchaser for price of goods and obtained a decree. Not having obtained satisfaction, the principal next filed a suit against the agent for damages on the ground of negligence and breach of duty. It was held that such an action was barred. The ground of the decision is that when on the same facts, a person has the right to claim one of two reliefs and with full knowledge he elects to claim one and obtains it, it is not open to him thereafter to go back on his election and claim the alternative relief.". 28. Referring to some English decisions, it was observed: "It is clear from the above observations that the maxim that a person cannot ‘approbate and reprobate is only one application of the doctrine of election, and that its operation must be confined to reliefs claimed in respect of the same transaction and to the persons who are parties thereto." 29. In C. Beepathumma & Ors. v. V.S. Kadambolithaya & Ors. [(1964) 5 SCR 836] , this Court held: "In view of the fact that in this way, Kunhi Pakki obtained the enjoyment of the mortgage in respect of his 1/4 share for a period of 40 years certain, he must be taken to have elected to apply to his own 1/4 share the terms of Ex. P-2. Having in this way accepted benefit and thus approbated that document, neither he nor his successors could be heard to say that the mortgage in Ex. P-1 was independent of Ex. P-2 and that the limitation ran out on the lapse of 60 years from 1842. In our opinion, the doctrine of election was properly applied in respect of Kunhi Pakkis 1/4 share now in the possession of the present appellants through Defendant 8." 30. In Ambu Nair since Deceased v. Kelu Nair, since Deceased [(1932-33) 60 Indian Appeals 266], it was held: "Having thus, almost in terms, offered to be redeemed under the usufructuary mortgage in order to get payment of the other mortgage debt the appellant, their Lordships think, cannot now turn round and say that redemption under the usufructuary mortgage had been barred nearly seventeen years before he so obtained payment. It is a well accepted principle that a party cannot both approbate and reprobate. He cannot, to use the words of Honeyman J. in Smith v. Baker (1), "at the same time blow hot and cold. He cannot say at one time that the transaction is valid and thereby obtain some advantage to which he could only be entitled on the footing that it is valid, and at another say it is void for the purpose of securing some further advantage." See also per Lord Kenyon C.J. in Smith v. Hodson (1) where the same expression is used." 31. A party consenting to an order cannot be permitted to resile therefrom while retaining the benefit obtained therefrom. {See Union of India v. Krishan Lal Arneja [(2004) 8 SCC 453] . 32. | 0[ds]It is now a well settled principle of law that it cannot be put in a straight jacket formula. The Court, despite opining that principle of natural justice was required to be followed, may, however, decline grant of a relief, inter alia, on the premise that the same would lead to a useless formality or that the person concerned, in fact, did not suffer any prejudice. It is trite that a party may waive his right of hearing by his conduct. It is furthermore well settled that a fact admitted need not be proved. Indisputably, the appellant was a party to the decision. The decision was based on the consent of the respondents which, in the facts and circumstances of this case, must be held to have included the appellants herein also.A judgment rendered by a court of law and in particular a consent order, it is trite, must not only be construed in its entirety but also having regard to the pleadings and conduct of the parties.t on consent in this case was passed only in view of Section 48(1) of the Act and not on any other premise. Appellant is the only beneficiary of the said order as by reason thereof, the judgment of the High Court in respect of 17,000 sq. ft. of land was set aside. By reason thereof, the possession of the appellant was protected as otherwise it was bound to hand over the vacant possession to the landladies pursuant to the order of eviction. For the aforementioned purpose, thus, the proceedings before this Court assume significance. We have noticed hereinbefore that the question as to whether such a notification can be issued was debated. The State of Uttar Pradesh has been given opportunity after opportunity therefor. The Chief Secretary was also asked to remain personally present.Only thereafter, the notification under Section 48 of the Act was issued. Appellants do not say nor does it appear from the record that at any point of time it raised any protest. In fact, it must be held to have accepted the suggestion whether emanating from this Court or from the State of Uttar Pradesh without any demur whatsoever. It is in the aforementioned situation, the doctrine that a person cannot be permitted to approbate or reprobate at the same time must be invoked. | 0 | 5,371 | 431 | ### 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:
same would lead to a useless formality or that the person concerned, in fact, did not suffer any prejudice. It is trite that a party may waive his right of hearing by his conduct. It is furthermore well settled that a fact admitted need not be proved. Indisputably, the appellant was a party to the decision. The decision was based on the consent of the respondents which, in the facts and circumstances of this case, must be held to have included the appellants herein also. 25. A judgment rendered by a court of law and in particular a consent order, it is trite, must not only be construed in its entirety but also having regard to the pleadings and conduct of the parties. {See N.K. Rajgarhia v. Mahavir Plantation Ltd. [(2006) 1 SCC 502 paragraph 19] 26.Judgment on consent in this case was passed only in view of Section 48(1) of the Act and not on any other premise. Appellant is the only beneficiary of the said order as by reason thereof, the judgment of the High Court in respect of 17,000 sq. ft. of land was set aside. By reason thereof, the possession of the appellant was protected as otherwise it was bound to hand over the vacant possession to the landladies pursuant to the order of eviction. For the aforementioned purpose, thus, the proceedings before this Court assume significance. We have noticed hereinbefore that the question as to whether such a notification can be issued was debated. The State of Uttar Pradesh has been given opportunity after opportunity therefor. The Chief Secretary was also asked to remain personally present. 27. Only thereafter, the notification under Section 48 of the Act was issued. Appellants do not say nor does it appear from the record that at any point of time it raised any protest. In fact, it must be held to have accepted the suggestion whether emanating from this Court or from the State of Uttar Pradesh without any demur whatsoever. It is in the aforementioned situation, the doctrine that a person cannot be permitted to approbate or reprobate at the same time must be invoked. In Nagubai Ammal & Ors. v. B. Shama Rao & Ors. [1956 SCR 451], this Court held: "But it is argued by Sri Krishnaswami Ayyangar that as the proceedings in OS No. 92 of 1938-39 are relied on as barring the plea that the decree and sale in OS No. 100 of 1919-20 are not collusive, not on the ground of res judicata or estoppel but on the principle that a person cannot both approbate and reprobate, it is immaterial that the present appellants were not parties thereto, and the decision in Verschures Creameries Ltd. v. Hull and Netherlands Steamship Company Ltd. and in particular, the observations of Scrutton, L.J., at page 611 were quoted in support of this position. There, the facts were that an agent delivered goods to the customer contrary to the instructions of the principal, who thereafter filed a suit against the purchaser for price of goods and obtained a decree. Not having obtained satisfaction, the principal next filed a suit against the agent for damages on the ground of negligence and breach of duty. It was held that such an action was barred. The ground of the decision is that when on the same facts, a person has the right to claim one of two reliefs and with full knowledge he elects to claim one and obtains it, it is not open to him thereafter to go back on his election and claim the alternative relief.". 28. Referring to some English decisions, it was observed: "It is clear from the above observations that the maxim that a person cannot ‘approbate and reprobate is only one application of the doctrine of election, and that its operation must be confined to reliefs claimed in respect of the same transaction and to the persons who are parties thereto." 29. In C. Beepathumma & Ors. v. V.S. Kadambolithaya & Ors. [(1964) 5 SCR 836] , this Court held: "In view of the fact that in this way, Kunhi Pakki obtained the enjoyment of the mortgage in respect of his 1/4 share for a period of 40 years certain, he must be taken to have elected to apply to his own 1/4 share the terms of Ex. P-2. Having in this way accepted benefit and thus approbated that document, neither he nor his successors could be heard to say that the mortgage in Ex. P-1 was independent of Ex. P-2 and that the limitation ran out on the lapse of 60 years from 1842. In our opinion, the doctrine of election was properly applied in respect of Kunhi Pakkis 1/4 share now in the possession of the present appellants through Defendant 8." 30. In Ambu Nair since Deceased v. Kelu Nair, since Deceased [(1932-33) 60 Indian Appeals 266], it was held: "Having thus, almost in terms, offered to be redeemed under the usufructuary mortgage in order to get payment of the other mortgage debt the appellant, their Lordships think, cannot now turn round and say that redemption under the usufructuary mortgage had been barred nearly seventeen years before he so obtained payment. It is a well accepted principle that a party cannot both approbate and reprobate. He cannot, to use the words of Honeyman J. in Smith v. Baker (1), "at the same time blow hot and cold. He cannot say at one time that the transaction is valid and thereby obtain some advantage to which he could only be entitled on the footing that it is valid, and at another say it is void for the purpose of securing some further advantage." See also per Lord Kenyon C.J. in Smith v. Hodson (1) where the same expression is used." 31. A party consenting to an order cannot be permitted to resile therefrom while retaining the benefit obtained therefrom. {See Union of India v. Krishan Lal Arneja [(2004) 8 SCC 453] . 32.
### Response:
0
### Explanation:
It is now a well settled principle of law that it cannot be put in a straight jacket formula. The Court, despite opining that principle of natural justice was required to be followed, may, however, decline grant of a relief, inter alia, on the premise that the same would lead to a useless formality or that the person concerned, in fact, did not suffer any prejudice. It is trite that a party may waive his right of hearing by his conduct. It is furthermore well settled that a fact admitted need not be proved. Indisputably, the appellant was a party to the decision. The decision was based on the consent of the respondents which, in the facts and circumstances of this case, must be held to have included the appellants herein also.A judgment rendered by a court of law and in particular a consent order, it is trite, must not only be construed in its entirety but also having regard to the pleadings and conduct of the parties.t on consent in this case was passed only in view of Section 48(1) of the Act and not on any other premise. Appellant is the only beneficiary of the said order as by reason thereof, the judgment of the High Court in respect of 17,000 sq. ft. of land was set aside. By reason thereof, the possession of the appellant was protected as otherwise it was bound to hand over the vacant possession to the landladies pursuant to the order of eviction. For the aforementioned purpose, thus, the proceedings before this Court assume significance. We have noticed hereinbefore that the question as to whether such a notification can be issued was debated. The State of Uttar Pradesh has been given opportunity after opportunity therefor. The Chief Secretary was also asked to remain personally present.Only thereafter, the notification under Section 48 of the Act was issued. Appellants do not say nor does it appear from the record that at any point of time it raised any protest. In fact, it must be held to have accepted the suggestion whether emanating from this Court or from the State of Uttar Pradesh without any demur whatsoever. It is in the aforementioned situation, the doctrine that a person cannot be permitted to approbate or reprobate at the same time must be invoked.
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Maharashtra Housing Development Authority Vs. Shapoorji Pallonji & Company Private Limited & Others | of its otherwise defective bid. This had led to the filing of writ petition out of which this appeal has arisen wherein the High Court of Bombay by the impugned judgment dated 28th September, 2017 had issued the following directions:“15. In the aforesaid facts and circumstances, we issue directions to the NIC to access the files containing the bid documents of the petitioners and transfer and/or make it available to respondent no.2 MHADA which would decrypt the said files and consider the bid documents of the petitioners as a “valid bid” with the assistance of the NIC and open the technical bid of the petitioners forthwith since we are conscious of the fact that the learned counsel for the MHADA had made a statement before us on 07.08.2017 that the technical evaluation of the bids is going on and in any case we do not intend to stall the project. If the petitioners bid satisfies the technical conditions, his financial bid can be considered along with the other three bidders who are already in the fray.”4. It is the aforesaid directions that have been assailed in this appeal by the Maharashtra Housing Development Authority.5. We have heard Shri Dushyant A. Dave, learned Senior Counsel appearing for the appellant, Shri Neeraj Kishan Kaul, learned Senior Counsel appearing for the first respondent – writ petitioner and Shri A.N.S. Nadkarni, learned ASG appearing for the NIC.6. The matter lies within a short compass. The first issue that arises for a decision is whether the bid document(s) uploaded by the first respondent – writ petitioner can be retrieved or is irretrievably lost. The second issue is - assuming the bid document(s) submitted by the first respondent is retrievable, whether the first respondent would be entitled to a consideration of the bids submitted by it on merits as has been directed by the High Court.7. To answer the first issue this Court by order dated 18th January, 2018 has directed the NIC to file an affidavit to answer the following query:“Whether the data uploaded by the respondent - bidder – Shapoorji Pallonji & Company Private Limited, receipt of which was not acknowledged on account of his alleged failure to press the ‘Freeze Button’, is irretrievably lost by this time and cannot be retrieved under any circumstance?”8. Pursuant to the aforesaid order dated 18th January, 2018 the NIC has filed an affidavit dated 23rd January, 2018 wherein it has been stated that the data uploaded by the first respondent cannot be retrieved by the NIC and Maharashtra Housing Development Authority jointly or severally under any circumstances in the present e-Tendering system with prevailing Government of India Guidelines. In paragraph 7 of the aforesaid affidavit dated 23rd January, 2018 the NIC has also stated as under:“7. As far as NIC is concerned it cannot access the invalid bid documents since it has neither the keys nor the approved process to download the same pertaining to any packet/envelop/cover. Even though keys are available with Maharashtra Housing Development Authority (Petitioner), but even with that keys the bid documents cannot be retrieved at this time as the bid opening event has already been concluded. Thus bid documents cannot be retrieved under any circumstances from the e-Tendering system.”9. The above apart, in the counter affidavit filed by the NIC it has been stated that the bid uploaded by the first respondent was invalid as the representative(s) of the said respondent did not press the ‘freeze button’ which alone would have completed the bid process. In this regard, the NIC has further stated that on 27th July, 2017 there was no problem in the server during the relevant time period and as many as 427 bid documents (pertaining to other tenders) were uploaded between 1200 hours to 1300 hours on the said date i.e. 27th July, 2017. The NIC in its affidavit has further stated that if the first respondent had uploaded the documents at 1216 hours on 27th July, 2017 and it had not received the bid submission acknowledgement it still had 44 minutes to contact the NIC for help which help was not sought. In this regard, the NIC has further stated that the first respondent – bidder had participated in e-Tendering in Maharashtra Government portal earlier and thus it was familiar with the entire process.10. If the NIC, which had developed the e-portal in which bids were to be submitted and maintenance and upkeep of which was its responsibility, had stated in its affidavit what has been indicated above, we do not see how the repeated statements made on behalf of the first respondent that the bid documents can still be retrieved, if required by traveling beyond the Government of India guidelines, should commend to us for acceptance. The opinion rendered in this regard by the consultant of the first respondent Mr. Arun Omkarlal Gupta on which much stress and reliance has been placed by the first respondent could hardly be determinative of the question in a situation where the NIC which had developed the portal had stated before the Court on affidavit that retrieval of the documents even jointly with Maharashtra Housing Development Authority is not feasible or possible. That apart, lack of any timely response of the first respondent when the system had failed to generate an acknowledgement of the bid documents in a situation where the first respondent claims to have pressed the ‘freeze button’; the generation of acknowledgements in respect of other bidders and the absence of any glitch in the technology would strongly indicate that the bid submitted by the first respondent was not a valid bid and the directions issued by the High Court in favour of the first respondent virtually confers on the said respondent a second opportunity which cannot be countenanced.11. In the above view of the matter, we are inclined to take the view that the High Court was not correct in issuing the directions extracted above as contained in paragraph 15 of the impugned judgment/order dated 28th September, 2017. | 1[ds]10. If the NIC, which had developed thein which bids were to be submitted and maintenance and upkeep of which was its responsibility, had stated in its affidavit what has been indicated above, we do not see how the repeated statements made on behalf of the first respondent that the bid documents can still be retrieved, if required by traveling beyond the Government of India guidelines, should commend to us for acceptance. The opinion rendered in this regard by the consultant of the first respondent Mr. Arun Omkarlal Gupta on which much stress and reliance has been placed by the first respondent could hardly be determinative of the question in a situation where the NIC which had developed the portal had stated before the Court on affidavit that retrieval of the documents even jointly with Maharashtra Housing Development Authority is not feasible or possible. That apart, lack of any timely response of the first respondent when the system had failed to generate an acknowledgement of the bid documents in a situation where the first respondent claims to have pressed the ‘freezethe generation of acknowledgements in respect of other bidders and the absence of any glitch in the technology would strongly indicate that the bid submitted by the first respondent was not a valid bid and the directions issued by the High Court in favour of the first respondent virtually confers on the said respondent a second opportunity which cannot be countenanced.11. In the above view of the matter, we are inclined to take the view that the High Court was not correct in issuing the directions extracted above as contained in paragraph 15 of the impugned judgment/order dated 28th September, 2017. | 1 | 1,405 | 300 | ### 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:
of its otherwise defective bid. This had led to the filing of writ petition out of which this appeal has arisen wherein the High Court of Bombay by the impugned judgment dated 28th September, 2017 had issued the following directions:“15. In the aforesaid facts and circumstances, we issue directions to the NIC to access the files containing the bid documents of the petitioners and transfer and/or make it available to respondent no.2 MHADA which would decrypt the said files and consider the bid documents of the petitioners as a “valid bid” with the assistance of the NIC and open the technical bid of the petitioners forthwith since we are conscious of the fact that the learned counsel for the MHADA had made a statement before us on 07.08.2017 that the technical evaluation of the bids is going on and in any case we do not intend to stall the project. If the petitioners bid satisfies the technical conditions, his financial bid can be considered along with the other three bidders who are already in the fray.”4. It is the aforesaid directions that have been assailed in this appeal by the Maharashtra Housing Development Authority.5. We have heard Shri Dushyant A. Dave, learned Senior Counsel appearing for the appellant, Shri Neeraj Kishan Kaul, learned Senior Counsel appearing for the first respondent – writ petitioner and Shri A.N.S. Nadkarni, learned ASG appearing for the NIC.6. The matter lies within a short compass. The first issue that arises for a decision is whether the bid document(s) uploaded by the first respondent – writ petitioner can be retrieved or is irretrievably lost. The second issue is - assuming the bid document(s) submitted by the first respondent is retrievable, whether the first respondent would be entitled to a consideration of the bids submitted by it on merits as has been directed by the High Court.7. To answer the first issue this Court by order dated 18th January, 2018 has directed the NIC to file an affidavit to answer the following query:“Whether the data uploaded by the respondent - bidder – Shapoorji Pallonji & Company Private Limited, receipt of which was not acknowledged on account of his alleged failure to press the ‘Freeze Button’, is irretrievably lost by this time and cannot be retrieved under any circumstance?”8. Pursuant to the aforesaid order dated 18th January, 2018 the NIC has filed an affidavit dated 23rd January, 2018 wherein it has been stated that the data uploaded by the first respondent cannot be retrieved by the NIC and Maharashtra Housing Development Authority jointly or severally under any circumstances in the present e-Tendering system with prevailing Government of India Guidelines. In paragraph 7 of the aforesaid affidavit dated 23rd January, 2018 the NIC has also stated as under:“7. As far as NIC is concerned it cannot access the invalid bid documents since it has neither the keys nor the approved process to download the same pertaining to any packet/envelop/cover. Even though keys are available with Maharashtra Housing Development Authority (Petitioner), but even with that keys the bid documents cannot be retrieved at this time as the bid opening event has already been concluded. Thus bid documents cannot be retrieved under any circumstances from the e-Tendering system.”9. The above apart, in the counter affidavit filed by the NIC it has been stated that the bid uploaded by the first respondent was invalid as the representative(s) of the said respondent did not press the ‘freeze button’ which alone would have completed the bid process. In this regard, the NIC has further stated that on 27th July, 2017 there was no problem in the server during the relevant time period and as many as 427 bid documents (pertaining to other tenders) were uploaded between 1200 hours to 1300 hours on the said date i.e. 27th July, 2017. The NIC in its affidavit has further stated that if the first respondent had uploaded the documents at 1216 hours on 27th July, 2017 and it had not received the bid submission acknowledgement it still had 44 minutes to contact the NIC for help which help was not sought. In this regard, the NIC has further stated that the first respondent – bidder had participated in e-Tendering in Maharashtra Government portal earlier and thus it was familiar with the entire process.10. If the NIC, which had developed the e-portal in which bids were to be submitted and maintenance and upkeep of which was its responsibility, had stated in its affidavit what has been indicated above, we do not see how the repeated statements made on behalf of the first respondent that the bid documents can still be retrieved, if required by traveling beyond the Government of India guidelines, should commend to us for acceptance. The opinion rendered in this regard by the consultant of the first respondent Mr. Arun Omkarlal Gupta on which much stress and reliance has been placed by the first respondent could hardly be determinative of the question in a situation where the NIC which had developed the portal had stated before the Court on affidavit that retrieval of the documents even jointly with Maharashtra Housing Development Authority is not feasible or possible. That apart, lack of any timely response of the first respondent when the system had failed to generate an acknowledgement of the bid documents in a situation where the first respondent claims to have pressed the ‘freeze button’; the generation of acknowledgements in respect of other bidders and the absence of any glitch in the technology would strongly indicate that the bid submitted by the first respondent was not a valid bid and the directions issued by the High Court in favour of the first respondent virtually confers on the said respondent a second opportunity which cannot be countenanced.11. In the above view of the matter, we are inclined to take the view that the High Court was not correct in issuing the directions extracted above as contained in paragraph 15 of the impugned judgment/order dated 28th September, 2017.
### Response:
1
### Explanation:
10. If the NIC, which had developed thein which bids were to be submitted and maintenance and upkeep of which was its responsibility, had stated in its affidavit what has been indicated above, we do not see how the repeated statements made on behalf of the first respondent that the bid documents can still be retrieved, if required by traveling beyond the Government of India guidelines, should commend to us for acceptance. The opinion rendered in this regard by the consultant of the first respondent Mr. Arun Omkarlal Gupta on which much stress and reliance has been placed by the first respondent could hardly be determinative of the question in a situation where the NIC which had developed the portal had stated before the Court on affidavit that retrieval of the documents even jointly with Maharashtra Housing Development Authority is not feasible or possible. That apart, lack of any timely response of the first respondent when the system had failed to generate an acknowledgement of the bid documents in a situation where the first respondent claims to have pressed the ‘freezethe generation of acknowledgements in respect of other bidders and the absence of any glitch in the technology would strongly indicate that the bid submitted by the first respondent was not a valid bid and the directions issued by the High Court in favour of the first respondent virtually confers on the said respondent a second opportunity which cannot be countenanced.11. In the above view of the matter, we are inclined to take the view that the High Court was not correct in issuing the directions extracted above as contained in paragraph 15 of the impugned judgment/order dated 28th September, 2017.
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Rama Steel Industries Vs. Union of India | be a bar for providing remedy under the Securitisation Act, since such remedy is in addition to those available under any other law. (18) THE contention of the learned Advocate for the petitioner that insertion of clause (cci) in section 5 of the Banking Regulation Act, without amending the provisions of clause (c) of section 5 of the said Act, was impermissible, has to be rejected, because the Legislature had to later on bring the Co-operative Societies undertaking Banking within the control and governance of Banking Regulation act. Therefore, it would not have sufficed to include Co-operative Banks within the definition of "banking Company". The Banking Regulation Act defines "banking" in clause (b) of section 5 apart from term "banking Company" defined in clause (c) of section 5. The scheme and object of the Banking regulation Act is entirely aimed at different object and it cannot be used to defeat a special enactment brought into force for objects, which are duly proclaimed. (19) THE contention of the learned Advocate for the petitioners that the impugned Notification dated 28-1-2003 has lost its force, because of the judgment of the Apex Court in Greater Bombay Co-op. Bank Ltd. vs. M/s United yam Tex. Pvt. Ltd. and ors. , referred to above, has to be rejected, because it has been considered and negatived by a Division Bench of this Court, sitting at aurangabad, in Writ Petition No. 2672 of 2007 and we see no reason to take a different view. (20) THE learned Advocate for the petitioner contended that insertion of a provision like the one in the Securitisation Act was beyond the legislative competence of the State Legislature. Since the State Legislature could not have provided such a remedy to Co-operative Banks covered under the Maharashtra co-operative Societies Act, the Central Government too could not have created such a remedy. This contention as well has been duly considered by the Division bench of this Court at Aurangabad in Writ Petition No. 2672 of 2007 and we would merely reproduce paras 31 to 34 of the said judgment to underscore our rejection of this contention. The said paras 31 to 34 read as under :"31. The submission is based on Schedule VII List I Entry 43 and schedule VII List II Entry 32 of the Constitution, which read as under :-"schedule 7 List 1. Union List 43. Incorporation, regulation and winding up of trading corporations, including banking, insurance and financial corporations but not including co-operative societies. Schedule 7 List 2. State List 32. Incorporation, regulation and winding up of corporations, other than those specified in List I, and universities; unincorporated trading, literary, scientific, religious and other societies and associations; co-operative societies. "It was submitted that disputes between the members of the co-operative societies can be agitated only under sections 91 and 101 of M. C. S. Act and not under any other Act including the Securitisation Act. ""32. It is necessary to keep in mind two principles while considering the challenge to the constitutional validity of an enactment. Firstly, the approach of the Court while examining the challenge to the constitutionality of an enactment is to start with a presumption of constitutionality. The Court should try to sustain the validity of an enactment to the extent possible. It should strike down the enactment only when it is not possible to sustain it. (Paragraph 75 of the judgment in Greater Bombay Co-operative Bank Ltd.) Secondly, as observed by the Federal Court in Subramanayan Chettiyar vs. Muttuswami Goundan, air 1941 FC 47. "it must inevitably happen from time to time that legislation though purporting to deal with a subject in one list, touches also upon a subject in another list, and the different provisions of the enactment may be so closely intertwined that blind adherence to a strictly verbal interpretation would result in a large number of statutes being declared invalid because the Legislature enacting them may appear to have legislated in a forbidden sphere. Hence the rule which has been evolved by the Judicial Committee, where the impugned statute is examined to ascertain its pith and substance or its true nature and character for the purpose of determine whether it is legislation with respect to matters in this list or that. ""33. At the outset it must be noted that the Supreme Court in Mardia chemicals upheld the constitutional validity of the Securitisation Act. It was however contended that the judgment of the Supreme Court in mardia Chemicals is per incuriam as the Supreme Court had failed to consider the relevant provisions of law including of the Constitution of india and is therefore not binding on us. We are unable to agree. "34 (A) It is important in this regard to refer to Ghanshamdass case. Two of the reliefs claimed in the Writ Petition in that case were for a writ striking down the Securitisation Act and in the alternative striking down sections 9, 13, 15, 19, 34, 35, 41 and 42 of the Securitisation Act. It was contended before the Division Bench that though the Supreme Court hud upheld the constitutional validity of the Securitisation Act in Mardia chemicals, certain points of challenge were not before the Supreme court. It was contended that though the entire Act was challenged, the supreme Court referred to certain aspects which were not answered. (B) The contention was rejected by the Division Bench inter-alia in paragraphs 22 to 25 of the judgment which we have set out earlier. The division Bench held that once the Apex Court had decided the validity of the Securitisation Act in Mardias case, it was not open to the High court to consider the validity of the Securitisation Act once again. (C) We are bound by the judgment of the Division Bench. The contention must be rejected on this ground alone. "(21) TO sum up, this attempt of the petitioner to evade recovery of dues by action under the Securitisation Act must, therefore, fail, since the contentions raised have absolutely no force. | 0[ds](21) TO sum up, this attempt of the petitioner to evade recovery of dues by action under the Securitisation Act must, therefore, fail, since the contentions raised have absolutely no force. | 0 | 3,208 | 42 | ### 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:
be a bar for providing remedy under the Securitisation Act, since such remedy is in addition to those available under any other law. (18) THE contention of the learned Advocate for the petitioner that insertion of clause (cci) in section 5 of the Banking Regulation Act, without amending the provisions of clause (c) of section 5 of the said Act, was impermissible, has to be rejected, because the Legislature had to later on bring the Co-operative Societies undertaking Banking within the control and governance of Banking Regulation act. Therefore, it would not have sufficed to include Co-operative Banks within the definition of "banking Company". The Banking Regulation Act defines "banking" in clause (b) of section 5 apart from term "banking Company" defined in clause (c) of section 5. The scheme and object of the Banking regulation Act is entirely aimed at different object and it cannot be used to defeat a special enactment brought into force for objects, which are duly proclaimed. (19) THE contention of the learned Advocate for the petitioners that the impugned Notification dated 28-1-2003 has lost its force, because of the judgment of the Apex Court in Greater Bombay Co-op. Bank Ltd. vs. M/s United yam Tex. Pvt. Ltd. and ors. , referred to above, has to be rejected, because it has been considered and negatived by a Division Bench of this Court, sitting at aurangabad, in Writ Petition No. 2672 of 2007 and we see no reason to take a different view. (20) THE learned Advocate for the petitioner contended that insertion of a provision like the one in the Securitisation Act was beyond the legislative competence of the State Legislature. Since the State Legislature could not have provided such a remedy to Co-operative Banks covered under the Maharashtra co-operative Societies Act, the Central Government too could not have created such a remedy. This contention as well has been duly considered by the Division bench of this Court at Aurangabad in Writ Petition No. 2672 of 2007 and we would merely reproduce paras 31 to 34 of the said judgment to underscore our rejection of this contention. The said paras 31 to 34 read as under :"31. The submission is based on Schedule VII List I Entry 43 and schedule VII List II Entry 32 of the Constitution, which read as under :-"schedule 7 List 1. Union List 43. Incorporation, regulation and winding up of trading corporations, including banking, insurance and financial corporations but not including co-operative societies. Schedule 7 List 2. State List 32. Incorporation, regulation and winding up of corporations, other than those specified in List I, and universities; unincorporated trading, literary, scientific, religious and other societies and associations; co-operative societies. "It was submitted that disputes between the members of the co-operative societies can be agitated only under sections 91 and 101 of M. C. S. Act and not under any other Act including the Securitisation Act. ""32. It is necessary to keep in mind two principles while considering the challenge to the constitutional validity of an enactment. Firstly, the approach of the Court while examining the challenge to the constitutionality of an enactment is to start with a presumption of constitutionality. The Court should try to sustain the validity of an enactment to the extent possible. It should strike down the enactment only when it is not possible to sustain it. (Paragraph 75 of the judgment in Greater Bombay Co-operative Bank Ltd.) Secondly, as observed by the Federal Court in Subramanayan Chettiyar vs. Muttuswami Goundan, air 1941 FC 47. "it must inevitably happen from time to time that legislation though purporting to deal with a subject in one list, touches also upon a subject in another list, and the different provisions of the enactment may be so closely intertwined that blind adherence to a strictly verbal interpretation would result in a large number of statutes being declared invalid because the Legislature enacting them may appear to have legislated in a forbidden sphere. Hence the rule which has been evolved by the Judicial Committee, where the impugned statute is examined to ascertain its pith and substance or its true nature and character for the purpose of determine whether it is legislation with respect to matters in this list or that. ""33. At the outset it must be noted that the Supreme Court in Mardia chemicals upheld the constitutional validity of the Securitisation Act. It was however contended that the judgment of the Supreme Court in mardia Chemicals is per incuriam as the Supreme Court had failed to consider the relevant provisions of law including of the Constitution of india and is therefore not binding on us. We are unable to agree. "34 (A) It is important in this regard to refer to Ghanshamdass case. Two of the reliefs claimed in the Writ Petition in that case were for a writ striking down the Securitisation Act and in the alternative striking down sections 9, 13, 15, 19, 34, 35, 41 and 42 of the Securitisation Act. It was contended before the Division Bench that though the Supreme Court hud upheld the constitutional validity of the Securitisation Act in Mardia chemicals, certain points of challenge were not before the Supreme court. It was contended that though the entire Act was challenged, the supreme Court referred to certain aspects which were not answered. (B) The contention was rejected by the Division Bench inter-alia in paragraphs 22 to 25 of the judgment which we have set out earlier. The division Bench held that once the Apex Court had decided the validity of the Securitisation Act in Mardias case, it was not open to the High court to consider the validity of the Securitisation Act once again. (C) We are bound by the judgment of the Division Bench. The contention must be rejected on this ground alone. "(21) TO sum up, this attempt of the petitioner to evade recovery of dues by action under the Securitisation Act must, therefore, fail, since the contentions raised have absolutely no force.
### Response:
0
### Explanation:
(21) TO sum up, this attempt of the petitioner to evade recovery of dues by action under the Securitisation Act must, therefore, fail, since the contentions raised have absolutely no force.
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Danamma @ Suman Surpur & Another Vs. Amar & Others | be affected but strengthened in this way. Settled principles governing such transactions relied upon by the appellants are not intended to be done away with for period prior to 20-12-2004. In no case statutory notional partition even after 20-12-2004 could be covered by the Explanation or the proviso in question. 23. Accordingly, we hold that the rights under the amendment are applicable to living daughters of living coparceners as on 9-9-2005 irrespective of when such daughters are born. Disposition or alienation including partitions which may have taken place before 20-12-2004 as per law applicable prior to the said date will remain unaffected. Any transaction of partition effected thereafter will be governed by the Explanation. 23) The law relating to a joint Hindu family governed by the Mitakshara law has undergone unprecedented changes. The said changes have been brought forward to address the growing need to merit equal treatment to the nearest female relatives, namely daughters of a coparcener. The section stipulates that a daughter would be a coparcener from her birth, and would have the same rights and liabilities as that of a son. The daughter would hold property to which she is entitled as a coparcenary property, which would be construed as property being capable of being disposed of by her either by a will or any other testamentary disposition. These changes have been sought to be made on the touchstone of equality, thus seeking to remove the perceived disability and prejudice to which a daughter was subjected. The fundamental changes brought forward about in the Hindu Succession Act, 1956 by amending it in 2005, are perhaps a realization of the immortal words of Roscoe Pound as appearing in his celebrated treaties, The Ideal Element in Law, that the law must be stable and yet it cannot stand still. Hence all thinking about law has struggled to reconcile the conflicting demands of the need of stability and the need of change. 24) Section 6, as amended, stipulates that on and from the commencement of the amended Act, 2005, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son. It is apparent that the status conferred upon sons under the old section and the old Hindu Law was to treat them as coparceners since birth. The amended provision now statutorily recognizes the rights of coparceners of daughters as well since birth. The section uses the words in the same manner as the son. It should therefore be apparent that both the sons and the daughters of a coparcener have been conferred the right of becoming coparceners by birth. It is the very factum of birth in a coparcenary that creates the coparcenary, therefore the sons and daughters of a coparcener become coparceners by virtue of birth. Devolution of coparcenary property is the later stage of and a consequence of death of a coparcener. The first stage of a coparcenary is obviously its creation as explained above, and as is well recognized. One of the incidents of coparcenary is the right of a coparcener to seek a severance of status. Hence, the rights of coparceners emanate and flow from birth (now including daughters) as is evident from sub-s (1)(a) and (b). 25) Reference to the decision of this Court, in the case of State Bank of India v. Ghamandi Ram (AIR 1969 SC 1330 )in essential to understand the incidents of coparceneryship as was always inherited in a Hindu Mitakshara coparcenary: According to the Mitakshara School of Hindu Law all the property of a Hindu joint family is held in collective ownership by all the coparceners in a quasi-corporate capacity. The textual authority of the Mitakshara lays down in express terms that the joint family property is held in trust for the joint family members then living and thereafter to be born (See Mitakshara, Ch. I. 1-27). The incidents of coparcenership under the Mitakshara law are: first, the lineal male descendants of a person up to the third generation, acquire on birth ownership in the ancestral properties is common; secondly, that such descendants can at any time work out their rights by asking for partition; thirdly, that till partition each member has got ownership extending over the entire property, conjointly with the rest; fourthly, that as a result of such co-ownership the possession and enjoyment of the properties is common; fifthly, that no alienation of the property is possible unless it be for necessity, without the concurrence of the coparceners, and sixthly, that the interest of a deceased member lapses on his death to the survivors. 26) Hence, it is clear that the right to partition has not been abrogated. The right is inherent and can be availed of by any coparcener, now even a daughter who is a coparcener. 27) In the present case, no doubt, suit for partition was filed in the year 2002. However, during the pendency of this suit, Section 6 of the Act was amended as the decree was passed by the trial court only in the year 2007. Thus, the rights of the appellants got crystallised in the year 2005 and this event should have been kept in mind by the trial court as well as by the High Court. This Court in Ganduri Koteshwaramma & Anr. v. Chakiri Yanadi & Anr. (2011) 9 SCC 788 )held that the rights of daughters in coparcenary property as per the amended S. 6 are not lost merely because a preliminary decree has been passed in a partition suit. So far as partition suits are concerned, the partition becomes final only on the passing of a final decree. Where such situation arises, the preliminary decree would have to be amended taking into account the change in the law by the amendment of 2005. 28) On facts, there is no dispute that the property which was the subject matter of partition suit belongs to joint family and Gurulingappa Savadi was propositus of the said joint family property. | 1[ds]17) No doubt, Explanation 1 to the aforesaid Section states that the interest of the deceased Mitakshara coparcenary property shall be deemed to be the share in the property that would have been allotted to him if the partition of the property had taken place immediately before his death, irrespective whether he was entitled to claim partition or not19) This case clearly negates the view taken by the High Court in the impugned judgment20) That apart, we are of the view that amendment to the aforesaid Section vide Amendment Act, 2005 clinches the issue, beyond any pale of doubt, in favour of the appellants. This amendment now confers upon the daughter of the coparcener as well the status of coparcener in her own right in the same manner as the son and gives same rights and liabilities in the coparcener properties as she would have had if it had been son26) Hence, it is clear that the right to partition has not been abrogatedThe right is inherent and can be availed of by any coparcener, now even a daughter who is a coparcener27) In the present case, no doubt, suit for partition was filed in the year 2002. However, during the pendency of this suit, Section 6 of the Act was amended as the decree was passed by the trial court only in the year 2007. Thus, the rights of the appellants got crystallised in the year 2005 and this event should have been kept in mind by the trial court as well as by the High Court. | 1 | 5,863 | 284 | ### 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:
be affected but strengthened in this way. Settled principles governing such transactions relied upon by the appellants are not intended to be done away with for period prior to 20-12-2004. In no case statutory notional partition even after 20-12-2004 could be covered by the Explanation or the proviso in question. 23. Accordingly, we hold that the rights under the amendment are applicable to living daughters of living coparceners as on 9-9-2005 irrespective of when such daughters are born. Disposition or alienation including partitions which may have taken place before 20-12-2004 as per law applicable prior to the said date will remain unaffected. Any transaction of partition effected thereafter will be governed by the Explanation. 23) The law relating to a joint Hindu family governed by the Mitakshara law has undergone unprecedented changes. The said changes have been brought forward to address the growing need to merit equal treatment to the nearest female relatives, namely daughters of a coparcener. The section stipulates that a daughter would be a coparcener from her birth, and would have the same rights and liabilities as that of a son. The daughter would hold property to which she is entitled as a coparcenary property, which would be construed as property being capable of being disposed of by her either by a will or any other testamentary disposition. These changes have been sought to be made on the touchstone of equality, thus seeking to remove the perceived disability and prejudice to which a daughter was subjected. The fundamental changes brought forward about in the Hindu Succession Act, 1956 by amending it in 2005, are perhaps a realization of the immortal words of Roscoe Pound as appearing in his celebrated treaties, The Ideal Element in Law, that the law must be stable and yet it cannot stand still. Hence all thinking about law has struggled to reconcile the conflicting demands of the need of stability and the need of change. 24) Section 6, as amended, stipulates that on and from the commencement of the amended Act, 2005, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son. It is apparent that the status conferred upon sons under the old section and the old Hindu Law was to treat them as coparceners since birth. The amended provision now statutorily recognizes the rights of coparceners of daughters as well since birth. The section uses the words in the same manner as the son. It should therefore be apparent that both the sons and the daughters of a coparcener have been conferred the right of becoming coparceners by birth. It is the very factum of birth in a coparcenary that creates the coparcenary, therefore the sons and daughters of a coparcener become coparceners by virtue of birth. Devolution of coparcenary property is the later stage of and a consequence of death of a coparcener. The first stage of a coparcenary is obviously its creation as explained above, and as is well recognized. One of the incidents of coparcenary is the right of a coparcener to seek a severance of status. Hence, the rights of coparceners emanate and flow from birth (now including daughters) as is evident from sub-s (1)(a) and (b). 25) Reference to the decision of this Court, in the case of State Bank of India v. Ghamandi Ram (AIR 1969 SC 1330 )in essential to understand the incidents of coparceneryship as was always inherited in a Hindu Mitakshara coparcenary: According to the Mitakshara School of Hindu Law all the property of a Hindu joint family is held in collective ownership by all the coparceners in a quasi-corporate capacity. The textual authority of the Mitakshara lays down in express terms that the joint family property is held in trust for the joint family members then living and thereafter to be born (See Mitakshara, Ch. I. 1-27). The incidents of coparcenership under the Mitakshara law are: first, the lineal male descendants of a person up to the third generation, acquire on birth ownership in the ancestral properties is common; secondly, that such descendants can at any time work out their rights by asking for partition; thirdly, that till partition each member has got ownership extending over the entire property, conjointly with the rest; fourthly, that as a result of such co-ownership the possession and enjoyment of the properties is common; fifthly, that no alienation of the property is possible unless it be for necessity, without the concurrence of the coparceners, and sixthly, that the interest of a deceased member lapses on his death to the survivors. 26) Hence, it is clear that the right to partition has not been abrogated. The right is inherent and can be availed of by any coparcener, now even a daughter who is a coparcener. 27) In the present case, no doubt, suit for partition was filed in the year 2002. However, during the pendency of this suit, Section 6 of the Act was amended as the decree was passed by the trial court only in the year 2007. Thus, the rights of the appellants got crystallised in the year 2005 and this event should have been kept in mind by the trial court as well as by the High Court. This Court in Ganduri Koteshwaramma & Anr. v. Chakiri Yanadi & Anr. (2011) 9 SCC 788 )held that the rights of daughters in coparcenary property as per the amended S. 6 are not lost merely because a preliminary decree has been passed in a partition suit. So far as partition suits are concerned, the partition becomes final only on the passing of a final decree. Where such situation arises, the preliminary decree would have to be amended taking into account the change in the law by the amendment of 2005. 28) On facts, there is no dispute that the property which was the subject matter of partition suit belongs to joint family and Gurulingappa Savadi was propositus of the said joint family property.
### Response:
1
### Explanation:
17) No doubt, Explanation 1 to the aforesaid Section states that the interest of the deceased Mitakshara coparcenary property shall be deemed to be the share in the property that would have been allotted to him if the partition of the property had taken place immediately before his death, irrespective whether he was entitled to claim partition or not19) This case clearly negates the view taken by the High Court in the impugned judgment20) That apart, we are of the view that amendment to the aforesaid Section vide Amendment Act, 2005 clinches the issue, beyond any pale of doubt, in favour of the appellants. This amendment now confers upon the daughter of the coparcener as well the status of coparcener in her own right in the same manner as the son and gives same rights and liabilities in the coparcener properties as she would have had if it had been son26) Hence, it is clear that the right to partition has not been abrogatedThe right is inherent and can be availed of by any coparcener, now even a daughter who is a coparcener27) In the present case, no doubt, suit for partition was filed in the year 2002. However, during the pendency of this suit, Section 6 of the Act was amended as the decree was passed by the trial court only in the year 2007. Thus, the rights of the appellants got crystallised in the year 2005 and this event should have been kept in mind by the trial court as well as by the High Court.
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Hindustan Foods Limited Dempo House, Goa Vs. The Deputy Commissioner of Income-Tax | issued in the year 1988 was due in 1995 and after 1995, the money was lying with the Assessee as unclaimed, which was not even subsequently transferred to the Investor Education and Protection Fund. Considering the aforesaid aspect of the matter, in our view, the Tribunal was justified in holding that the amount, in question has rightly been treated as Trade Receipt by the AO. In the case of Commissioner of Income-Tax vs. T.V. Sundaram Iyengar and Sons Ltd. (supra), the Supreme Court while considering the question about unclaim balances in the matter of business income has held that if an amount is received in the course of a trading transaction, even though it is not taxable in the year of receipt as being of revenue character, the amount changes its character when the amount becomes the assessees own money because of limitation or by any other statutory or contractual right and when such a thing happens, common sense demands that the amount should be treated as income of the assessee. The relevant observation which is at page 353 of the said Judgment, reads as under : The principle laid down by Atkinson J., applies in full force to the facts of this case. If a commonsense view of the matter is taken, the assessee, because of the trading operation, had become richer by the amount which is transferred to its profit and loss account. The moneys had arisen out of ordinary trading transactions. Although the amounts received originally were not of income nature, the amounts remained with the assessee for a long period unclaimed by the trade parties. By lapse of time, the claim of the deposit became time-barred and the amount attained a totally different quality. It became a definite trade surplus. Atkinson J. pointed out that in Tattersalls case [1939] 7 ITR 316 (CA) no trading asset was created. Mere change of method of book-keeping had taken place. But, where a new asset came into being automatically by operation of law, commonsense demanded that the amount should be entered in the profit and loss account for the year and be treated as taxable income. In other words, the principle appears to be that if an amount is received in the course of trading transaction, even though it is not taxable in the year of receipt as being of revenue character, the amount changes its character when the amount becomes the assessees own money because of limitation or by any other statutory or contractual right. When such a thing happens, commonsense demands that the amount should be treated as income of the assessee.In the present case, the money was received by the assessee in the course of carrying on his business. Although it was treated as deposit and was of capital nature at the point of time it was received, by efflux of time the money has become the assessees own money. What remains after adjustment of the deposit has not been claimed by the customers. The claims of the customers have become barred by limitation. The assessee itself has treated the money as its own money and taken the amount to its profit and loss account. There is no explanation from the assessee why the surplus money was taken to its profit and loss account even if it was somebody elses money. In fact, as Atkinson J. pointed out that what the assessee did was the commonsense way of dealing with the amounts.In the instant case, since it is not in dispute that the amount, in question, has already been utilized by the Assessee for the purpose of its business from time to time and by Board Resolution the Assessee has transferred the amount to the Reserve Fund Account, and considering the Judgment of the Supreme Court in the case of Commissioner of Income-Tax vs. T.V. Sundaram Iyengar and Sons Ltd. (supra), the amount utilized for the purpose of business of the Assessee was required to be treated as business income.10. Considering the aforesaid aspect of the matter and considering the fact that the Assessee has already utilized the money from time to time for its business purpose and having been taken benefit of utilizing the money for its business, now cannot say that the debt, in question, has not become time barred and, therefore, the said unclaimed amount should not have been treated as income of the assessee by way of trade receipt. The Tribunal has given in paras 9 and 10 of its order, cogent reasons for coming to the conclusion that the amount, in question, is required to be considered as income of the assessee. The Tribunal has also rightly held that in the subsequent assessment years, if some amount is paid to the debenture holders, the AO should deduct such amount in the relevant assessment years. The Tribunal has, accordingly, while setting aside the orders of the AO, as well as the Appellate Authority, given such benefit to the Assessee in the relevant assessment years.11. We, accordingly, do not find that any substantial question of law arises, as framed, for determination of this Court and considering the facts of the case, it cannot be said that the Tribunal has erred in coming to the conclusion that the amount, in question, is to be treated as income of the Assessee for the relevant assessment year and by treating the same as Trade Receipt as, admittedly, the amount in question was utilized by the Assessee for its business purpose and, in fact, was transferred to the Reserve Fund Account, treating it as not income of the Assessee and even Shri Usgaonkar, learned Counsel for the appellant-company has admitted that the Assessee-company has treated the amount as its income and utilized it for its business. We, therefore, do not see any infirmity in the decision of the Tribunal in partly allowing the appeal filed by the Revenue and directing the AO to give benefit of the amount repaid to the debenture-holders in the relevant assessment years. | 0[ds]Considering the aforesaid aspect of the matter, in our view, the Tribunal was justified in holding that the amount, in question has rightly been treated as Trade Receipt by the AO. In the case of Commissioner ofvs. T.V. Sundaram Iyengar and Sons Ltd. (supra), the Supreme Court while considering the question about unclaim balances in the matter of business income has held that if an amount is received in the course of a trading transaction, even though it is not taxable in the year of receipt as being of revenue character, the amount changes its character when the amount becomes the assessees own money because of limitation or by any other statutory or contractual right and when such a thing happens, common sense demands that the amount should be treated as income of the assessee.Considering the aforesaid aspect of the matter and considering the fact that the Assessee has already utilized the money from time to time for its business purpose and having been taken benefit of utilizing the money for its business, now cannot say that the debt, in question, has not become time barred and, therefore, the said unclaimed amount should not have been treated as income of the assessee by way of trade receipt. The Tribunal has given in paras 9 and 10 of its order, cogent reasons for coming to the conclusion that the amount, in question, is required to be considered as income of the assessee. The Tribunal has also rightly held that in the subsequent assessment years, if some amount is paid to the debenture holders, the AO should deduct such amount in the relevant assessment years. The Tribunal has, accordingly, while setting aside the orders of the AO, as well as the Appellate Authority, given such benefit to the Assessee in the relevant assessment years.11. We, accordingly, do not find that any substantial question of law arises, as framed, for determination of this Court and considering the facts of the case, it cannot be said that the Tribunal has erred in coming to the conclusion that the amount, in question, is to be treated as income of the Assessee for the relevant assessment year and by treating the same as Trade Receipt as, admittedly, the amount in question was utilized by the Assessee for its business purpose and, in fact, was transferred to the Reserve Fund Account, treating it as not income of the Assessee and even Shri Usgaonkar, learned Counsel for thehas admitted that thehas treated the amount as its income and utilized it for its business. We, therefore, do not see any infirmity in the decision of the Tribunal in partly allowing the appeal filed by the Revenue and directing the AO to give benefit of the amount repaid to thein the relevant assessment years. | 0 | 3,305 | 517 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
issued in the year 1988 was due in 1995 and after 1995, the money was lying with the Assessee as unclaimed, which was not even subsequently transferred to the Investor Education and Protection Fund. Considering the aforesaid aspect of the matter, in our view, the Tribunal was justified in holding that the amount, in question has rightly been treated as Trade Receipt by the AO. In the case of Commissioner of Income-Tax vs. T.V. Sundaram Iyengar and Sons Ltd. (supra), the Supreme Court while considering the question about unclaim balances in the matter of business income has held that if an amount is received in the course of a trading transaction, even though it is not taxable in the year of receipt as being of revenue character, the amount changes its character when the amount becomes the assessees own money because of limitation or by any other statutory or contractual right and when such a thing happens, common sense demands that the amount should be treated as income of the assessee. The relevant observation which is at page 353 of the said Judgment, reads as under : The principle laid down by Atkinson J., applies in full force to the facts of this case. If a commonsense view of the matter is taken, the assessee, because of the trading operation, had become richer by the amount which is transferred to its profit and loss account. The moneys had arisen out of ordinary trading transactions. Although the amounts received originally were not of income nature, the amounts remained with the assessee for a long period unclaimed by the trade parties. By lapse of time, the claim of the deposit became time-barred and the amount attained a totally different quality. It became a definite trade surplus. Atkinson J. pointed out that in Tattersalls case [1939] 7 ITR 316 (CA) no trading asset was created. Mere change of method of book-keeping had taken place. But, where a new asset came into being automatically by operation of law, commonsense demanded that the amount should be entered in the profit and loss account for the year and be treated as taxable income. In other words, the principle appears to be that if an amount is received in the course of trading transaction, even though it is not taxable in the year of receipt as being of revenue character, the amount changes its character when the amount becomes the assessees own money because of limitation or by any other statutory or contractual right. When such a thing happens, commonsense demands that the amount should be treated as income of the assessee.In the present case, the money was received by the assessee in the course of carrying on his business. Although it was treated as deposit and was of capital nature at the point of time it was received, by efflux of time the money has become the assessees own money. What remains after adjustment of the deposit has not been claimed by the customers. The claims of the customers have become barred by limitation. The assessee itself has treated the money as its own money and taken the amount to its profit and loss account. There is no explanation from the assessee why the surplus money was taken to its profit and loss account even if it was somebody elses money. In fact, as Atkinson J. pointed out that what the assessee did was the commonsense way of dealing with the amounts.In the instant case, since it is not in dispute that the amount, in question, has already been utilized by the Assessee for the purpose of its business from time to time and by Board Resolution the Assessee has transferred the amount to the Reserve Fund Account, and considering the Judgment of the Supreme Court in the case of Commissioner of Income-Tax vs. T.V. Sundaram Iyengar and Sons Ltd. (supra), the amount utilized for the purpose of business of the Assessee was required to be treated as business income.10. Considering the aforesaid aspect of the matter and considering the fact that the Assessee has already utilized the money from time to time for its business purpose and having been taken benefit of utilizing the money for its business, now cannot say that the debt, in question, has not become time barred and, therefore, the said unclaimed amount should not have been treated as income of the assessee by way of trade receipt. The Tribunal has given in paras 9 and 10 of its order, cogent reasons for coming to the conclusion that the amount, in question, is required to be considered as income of the assessee. The Tribunal has also rightly held that in the subsequent assessment years, if some amount is paid to the debenture holders, the AO should deduct such amount in the relevant assessment years. The Tribunal has, accordingly, while setting aside the orders of the AO, as well as the Appellate Authority, given such benefit to the Assessee in the relevant assessment years.11. We, accordingly, do not find that any substantial question of law arises, as framed, for determination of this Court and considering the facts of the case, it cannot be said that the Tribunal has erred in coming to the conclusion that the amount, in question, is to be treated as income of the Assessee for the relevant assessment year and by treating the same as Trade Receipt as, admittedly, the amount in question was utilized by the Assessee for its business purpose and, in fact, was transferred to the Reserve Fund Account, treating it as not income of the Assessee and even Shri Usgaonkar, learned Counsel for the appellant-company has admitted that the Assessee-company has treated the amount as its income and utilized it for its business. We, therefore, do not see any infirmity in the decision of the Tribunal in partly allowing the appeal filed by the Revenue and directing the AO to give benefit of the amount repaid to the debenture-holders in the relevant assessment years.
### Response:
0
### Explanation:
Considering the aforesaid aspect of the matter, in our view, the Tribunal was justified in holding that the amount, in question has rightly been treated as Trade Receipt by the AO. In the case of Commissioner ofvs. T.V. Sundaram Iyengar and Sons Ltd. (supra), the Supreme Court while considering the question about unclaim balances in the matter of business income has held that if an amount is received in the course of a trading transaction, even though it is not taxable in the year of receipt as being of revenue character, the amount changes its character when the amount becomes the assessees own money because of limitation or by any other statutory or contractual right and when such a thing happens, common sense demands that the amount should be treated as income of the assessee.Considering the aforesaid aspect of the matter and considering the fact that the Assessee has already utilized the money from time to time for its business purpose and having been taken benefit of utilizing the money for its business, now cannot say that the debt, in question, has not become time barred and, therefore, the said unclaimed amount should not have been treated as income of the assessee by way of trade receipt. The Tribunal has given in paras 9 and 10 of its order, cogent reasons for coming to the conclusion that the amount, in question, is required to be considered as income of the assessee. The Tribunal has also rightly held that in the subsequent assessment years, if some amount is paid to the debenture holders, the AO should deduct such amount in the relevant assessment years. The Tribunal has, accordingly, while setting aside the orders of the AO, as well as the Appellate Authority, given such benefit to the Assessee in the relevant assessment years.11. We, accordingly, do not find that any substantial question of law arises, as framed, for determination of this Court and considering the facts of the case, it cannot be said that the Tribunal has erred in coming to the conclusion that the amount, in question, is to be treated as income of the Assessee for the relevant assessment year and by treating the same as Trade Receipt as, admittedly, the amount in question was utilized by the Assessee for its business purpose and, in fact, was transferred to the Reserve Fund Account, treating it as not income of the Assessee and even Shri Usgaonkar, learned Counsel for thehas admitted that thehas treated the amount as its income and utilized it for its business. We, therefore, do not see any infirmity in the decision of the Tribunal in partly allowing the appeal filed by the Revenue and directing the AO to give benefit of the amount repaid to thein the relevant assessment years.
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Ashok Service Centre & Another Etc Vs. State Of Orissa | definition of the expression gross turnover in section 2 (dd) of the Principal Act does not present any insurmountable difficulty as the words defined in section 2 of the Principal Act have to be given the meaning as indicated in that section unless there is anything repugnant in the subject or context. In view of the foregoing, section 3 (1) of the Act has to be read as:"Every dealer (who is liable to pay tax under the Principal Act) shall, in addition to the tax payable by him for a year under the said Act, be liable to pay additional tax at such rate not exceeding one percent of his gross turnover (which is taxable under the Principal Act) for that year, as may be notified from time to time by the State Government.Provided .........................................Provided .........................................If section 3 (1) is so read there would not be any anomaly but on the other hand it would effectuate the intention of the State Legislature. We are aware of the principal that a statute has to be interpreted according to the words used therein and if the word used therein are clear it is not open to the Court to go in search of t he intention of the Legislature and to arrive at a meaning different from what the words of the statute convey. When the Act is read as a whole it becomes inevitable that it bas to be read together with the Principal Act. Craieson Statute Law (7th Edn ) says at page 223 that where the later of two Acts provides that the Who are to be read together every part of each Act must be construed as if the two Acts had been one, unless their is some manifest discrepancy making it necessary to hold that the later Act has to some extent modified the provisions of the earlier Act. When section 3 (1) of the Act read in the light of subsection (2) thereof, section 8 of the Principal Act which prescribes a single point levy becomes immediately attracted. It was, however, argued on behalf of the Department that since section 8 of the Principal Act opened with The words notwithstanding anything to the contrary in this Act, the operation of section 8 should be confined to the tax payable under the Principal Act and could not be extended to the additional tax payable under the Act. We do not find any merit in this submission, since the words this Act were used in section 8 because when the Principal Act was enacted section 8 could apply only to the liability under the Principal Act. Now by reason of section 3 (2) of the Act, section 8 has been made also applicable to the levy, assessment and collection of the additional tax under the Act. If we accept the argument of the Department even section 13 of the Principal Act which provides for the machinery for ff recovery of tax and penalty would become unavailable for collecting the additional tax under the Act as section 13 also uses the words tax payable under this Act. Likewise, many other provisions of the Principal Act which are necessary for making the levy under the Act effective will become inapplicable. The above contention has therefore to be rejected.Lastly it was contended on behalf of the State Government that section 3 (1) of the Act should be construed as a complete and self-contained code on the charge created by the Act in view of the second proviso contained in it which conferred powers o f exemption OD the State Government. That proviso only empowers the State Government to exempt certain dealers or transactions pertaining to certain goods from the levy of additional tax. It does not in any way curtail the effect of sub-section (2) of section 3 of the Act which forms an integral part of the charging section. Consequently any exemption granted under section 6 and section 7 of the Principal Act will also be applicable in the case of levy of additional tax under the Act .8. In view of the foregoing, we hold that any dealer is not liable to pay tax under the Principal Act either by reason of his not having sufficient gross turnover or by reason of exemption given under section 7 of the Principal Act, is no t liable to pay additional tax under the Act. If a dealer is exempted by the State Government under the second proviso to section 3(1) of the Act he is also not liable to pay the additional tax under the Act. If the turnover of a dealer relating to an y sales or purchases of goods is exempted under section 6 of the principal Act, such turnover cannot be subjected to any levy of additional tax under the Act by virtue of section 3 (2) of the Act. The Government Notifications S.R.O.. No. 410/79 dated March 23, 1979 issued under the second proviso to section 3 (1) of the Act exempting the turnover relating to goods whose turnover is exempted from payment of tax under section 6 of the Principal Act from payment of additional tax under the Act is, therefore, redundant. The turnover in respect of goods whose sales or purchases are not taxable under the Principal Act in the hands of any dealer by reason of section 8 of the Principal Act is not liable to the payment of addition al sales tax under the Act. The turnover in respect of sales and purchases of declared goods is not taxable under the Act by reason of the first proviso to section 3 (1) of the Act. Any other turnover which is exempted by the State Government under the second proviso to section 3 (1) of the Act is also not taxable under the Act. The levy of the additional tax on the gross turnover of a dealer under section 3 of the Act is subject to these conclusions.In the result the appeals succeed. Th | 1[ds]If section 3 (1) is so read there would not be any anomaly but on the other hand it would effectuate the intention of the State Legislature. We are aware of the principal that a statute has to be interpreted according to the words used therein and if the word used therein are clear it is not open to the Court to go in search of t he intention of the Legislature and to arrive at a meaning different from what the words of the statute convey. When the Act is read as a whole it becomes inevitable that it bas to be read together with the Principal Act. Craieson Statute Law (7th Edn ) says at page 223 that where the later of two Acts provides that the Who are to be read together every part of each Act must be construed as if the two Acts had been one, unless their is some manifest discrepancy making it necessary to hold that the later Act has to some extent modified the provisions of the earlier Act. When section 3 (1) of the Act read in the light of subsection (2) thereof, section 8 of the Principal Act which prescribes a single point levy becomes immediately attracted. It was, however, argued on behalf of the Department that since section 8 of the Principal Act opened with The words notwithstanding anything to the contrary in this Act, the operation of section 8 should be confined to the tax payable under the Principal Act and could not be extended to the additional tax payable under the Act. We do not find any merit in this submission, since the words this Act were used in section 8 because when the Principal Act was enacted section 8 could apply only to the liability under the Principal Act. Now by reason of section 3 (2) of the Act, section 8 has been made also applicable to the levy, assessment and collection of the additional tax under the Act. If we accept the argument of the Department even section 13 of the Principal Act which provides for the machinery for ff recovery of tax and penalty would become unavailable for collecting the additional tax under the Act as section 13 also uses the words tax payable under this Act. Likewise, many other provisions of the Principal Act which are necessary for making the levy under the Act effective will become inapplicable. The above contention has therefore to be rejected.Lastly it was contended on behalf of the State Government that section 3 (1) of the Act should be construed as a complete and self-contained code on the charge created by the Act in view of the second proviso contained in it which conferred powers o f exemption OD the State Government. That proviso only empowers the State Government to exempt certain dealers or transactions pertaining to certain goods from the levy of additional tax. It does not in any way curtail the effect of sub-section (2) of section 3 of the Act which forms an integral part of the charging section. Consequently any exemption granted under section 6 and section 7 of the Principal Act will also be applicable in the case of levy of additional tax under the Actview of the foregoing, we hold that any dealer is not liable to pay tax under the Principal Act either by reason of his not having sufficient gross turnover or by reason of exemption given under section 7 of the Principal Act, is no t liable to pay additional tax under the Act. If a dealer is exempted by the State Government under the second proviso to section 3(1) of the Act he is also not liable to pay the additional tax under the Act. If the turnover of a dealer relating to an y sales or purchases of goods is exempted under section 6 of the principal Act, such turnover cannot be subjected to any levy of additional tax under the Act by virtue of section 3 (2) of the Act. The Government Notifications S.R.O.. No. 410/79 dated March 23, 1979 issued under the second proviso to section 3 (1) of the Act exempting the turnover relating to goods whose turnover is exempted from payment of tax under section 6 of the Principal Act from payment of additional tax under the Act is, therefore, redundant. The turnover in respect of goods whose sales or purchases are not taxable under the Principal Act in the hands of any dealer by reason of section 8 of the Principal Act is not liable to the payment of addition al sales tax under the Act. The turnover in respect of sales and purchases of declared goods is not taxable under the Act by reason of the first proviso to section 3 (1) of the Act. Any other turnover which is exempted by the State Government under the second proviso to section 3 (1) of the Act is also not taxable under the Act. The levy of the additional tax on the gross turnover of a dealer under section 3 of the Act is subject to these conclusions.In the result the appeals succeed. The judgment of the High Court in each of these cases is set aside. It is hereby declared that the additional tax under the Act can be levied and collected under section 3 of the Act in accordance with our conclusions set out in the previous paragraph | 1 | 7,238 | 976 | ### 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:
definition of the expression gross turnover in section 2 (dd) of the Principal Act does not present any insurmountable difficulty as the words defined in section 2 of the Principal Act have to be given the meaning as indicated in that section unless there is anything repugnant in the subject or context. In view of the foregoing, section 3 (1) of the Act has to be read as:"Every dealer (who is liable to pay tax under the Principal Act) shall, in addition to the tax payable by him for a year under the said Act, be liable to pay additional tax at such rate not exceeding one percent of his gross turnover (which is taxable under the Principal Act) for that year, as may be notified from time to time by the State Government.Provided .........................................Provided .........................................If section 3 (1) is so read there would not be any anomaly but on the other hand it would effectuate the intention of the State Legislature. We are aware of the principal that a statute has to be interpreted according to the words used therein and if the word used therein are clear it is not open to the Court to go in search of t he intention of the Legislature and to arrive at a meaning different from what the words of the statute convey. When the Act is read as a whole it becomes inevitable that it bas to be read together with the Principal Act. Craieson Statute Law (7th Edn ) says at page 223 that where the later of two Acts provides that the Who are to be read together every part of each Act must be construed as if the two Acts had been one, unless their is some manifest discrepancy making it necessary to hold that the later Act has to some extent modified the provisions of the earlier Act. When section 3 (1) of the Act read in the light of subsection (2) thereof, section 8 of the Principal Act which prescribes a single point levy becomes immediately attracted. It was, however, argued on behalf of the Department that since section 8 of the Principal Act opened with The words notwithstanding anything to the contrary in this Act, the operation of section 8 should be confined to the tax payable under the Principal Act and could not be extended to the additional tax payable under the Act. We do not find any merit in this submission, since the words this Act were used in section 8 because when the Principal Act was enacted section 8 could apply only to the liability under the Principal Act. Now by reason of section 3 (2) of the Act, section 8 has been made also applicable to the levy, assessment and collection of the additional tax under the Act. If we accept the argument of the Department even section 13 of the Principal Act which provides for the machinery for ff recovery of tax and penalty would become unavailable for collecting the additional tax under the Act as section 13 also uses the words tax payable under this Act. Likewise, many other provisions of the Principal Act which are necessary for making the levy under the Act effective will become inapplicable. The above contention has therefore to be rejected.Lastly it was contended on behalf of the State Government that section 3 (1) of the Act should be construed as a complete and self-contained code on the charge created by the Act in view of the second proviso contained in it which conferred powers o f exemption OD the State Government. That proviso only empowers the State Government to exempt certain dealers or transactions pertaining to certain goods from the levy of additional tax. It does not in any way curtail the effect of sub-section (2) of section 3 of the Act which forms an integral part of the charging section. Consequently any exemption granted under section 6 and section 7 of the Principal Act will also be applicable in the case of levy of additional tax under the Act .8. In view of the foregoing, we hold that any dealer is not liable to pay tax under the Principal Act either by reason of his not having sufficient gross turnover or by reason of exemption given under section 7 of the Principal Act, is no t liable to pay additional tax under the Act. If a dealer is exempted by the State Government under the second proviso to section 3(1) of the Act he is also not liable to pay the additional tax under the Act. If the turnover of a dealer relating to an y sales or purchases of goods is exempted under section 6 of the principal Act, such turnover cannot be subjected to any levy of additional tax under the Act by virtue of section 3 (2) of the Act. The Government Notifications S.R.O.. No. 410/79 dated March 23, 1979 issued under the second proviso to section 3 (1) of the Act exempting the turnover relating to goods whose turnover is exempted from payment of tax under section 6 of the Principal Act from payment of additional tax under the Act is, therefore, redundant. The turnover in respect of goods whose sales or purchases are not taxable under the Principal Act in the hands of any dealer by reason of section 8 of the Principal Act is not liable to the payment of addition al sales tax under the Act. The turnover in respect of sales and purchases of declared goods is not taxable under the Act by reason of the first proviso to section 3 (1) of the Act. Any other turnover which is exempted by the State Government under the second proviso to section 3 (1) of the Act is also not taxable under the Act. The levy of the additional tax on the gross turnover of a dealer under section 3 of the Act is subject to these conclusions.In the result the appeals succeed. Th
### Response:
1
### Explanation:
If section 3 (1) is so read there would not be any anomaly but on the other hand it would effectuate the intention of the State Legislature. We are aware of the principal that a statute has to be interpreted according to the words used therein and if the word used therein are clear it is not open to the Court to go in search of t he intention of the Legislature and to arrive at a meaning different from what the words of the statute convey. When the Act is read as a whole it becomes inevitable that it bas to be read together with the Principal Act. Craieson Statute Law (7th Edn ) says at page 223 that where the later of two Acts provides that the Who are to be read together every part of each Act must be construed as if the two Acts had been one, unless their is some manifest discrepancy making it necessary to hold that the later Act has to some extent modified the provisions of the earlier Act. When section 3 (1) of the Act read in the light of subsection (2) thereof, section 8 of the Principal Act which prescribes a single point levy becomes immediately attracted. It was, however, argued on behalf of the Department that since section 8 of the Principal Act opened with The words notwithstanding anything to the contrary in this Act, the operation of section 8 should be confined to the tax payable under the Principal Act and could not be extended to the additional tax payable under the Act. We do not find any merit in this submission, since the words this Act were used in section 8 because when the Principal Act was enacted section 8 could apply only to the liability under the Principal Act. Now by reason of section 3 (2) of the Act, section 8 has been made also applicable to the levy, assessment and collection of the additional tax under the Act. If we accept the argument of the Department even section 13 of the Principal Act which provides for the machinery for ff recovery of tax and penalty would become unavailable for collecting the additional tax under the Act as section 13 also uses the words tax payable under this Act. Likewise, many other provisions of the Principal Act which are necessary for making the levy under the Act effective will become inapplicable. The above contention has therefore to be rejected.Lastly it was contended on behalf of the State Government that section 3 (1) of the Act should be construed as a complete and self-contained code on the charge created by the Act in view of the second proviso contained in it which conferred powers o f exemption OD the State Government. That proviso only empowers the State Government to exempt certain dealers or transactions pertaining to certain goods from the levy of additional tax. It does not in any way curtail the effect of sub-section (2) of section 3 of the Act which forms an integral part of the charging section. Consequently any exemption granted under section 6 and section 7 of the Principal Act will also be applicable in the case of levy of additional tax under the Actview of the foregoing, we hold that any dealer is not liable to pay tax under the Principal Act either by reason of his not having sufficient gross turnover or by reason of exemption given under section 7 of the Principal Act, is no t liable to pay additional tax under the Act. If a dealer is exempted by the State Government under the second proviso to section 3(1) of the Act he is also not liable to pay the additional tax under the Act. If the turnover of a dealer relating to an y sales or purchases of goods is exempted under section 6 of the principal Act, such turnover cannot be subjected to any levy of additional tax under the Act by virtue of section 3 (2) of the Act. The Government Notifications S.R.O.. No. 410/79 dated March 23, 1979 issued under the second proviso to section 3 (1) of the Act exempting the turnover relating to goods whose turnover is exempted from payment of tax under section 6 of the Principal Act from payment of additional tax under the Act is, therefore, redundant. The turnover in respect of goods whose sales or purchases are not taxable under the Principal Act in the hands of any dealer by reason of section 8 of the Principal Act is not liable to the payment of addition al sales tax under the Act. The turnover in respect of sales and purchases of declared goods is not taxable under the Act by reason of the first proviso to section 3 (1) of the Act. Any other turnover which is exempted by the State Government under the second proviso to section 3 (1) of the Act is also not taxable under the Act. The levy of the additional tax on the gross turnover of a dealer under section 3 of the Act is subject to these conclusions.In the result the appeals succeed. The judgment of the High Court in each of these cases is set aside. It is hereby declared that the additional tax under the Act can be levied and collected under section 3 of the Act in accordance with our conclusions set out in the previous paragraph
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Vishnu Mahadeo Pendse Vs. The Rajen Textile Mills Private Limited And Another | nor was there any law prohibiting such transfers, and (2) the lands in dispute were held on lease for the benefit of an industrial undertaking, namely Barsi Mills, within the meaning of Section 88(1)(b) of the 1948 Act; Section 88 specifies the lands and areas to which the 1948 Act did not apply. 3. Mr. Patel, learned for the appellants, raised two contentions : (1) the lands are agricultural lands and as such Section 88(1)(b) which excluded from the operation of the 1948 Act lands held on lease for the benefit of an industrial or commercial undertaking has no application, and (2) having regard to the proviso to Section 43C of the 1948 Act the auction sale and the subsequent assignment of the leasehold rights were void.4. Before we proceed to consider the merits of these contentions, it seems to us that the suits for possession must fail on a preliminary ground, as urged by Mr. Bal, Counsel for the respondents. In the plaint the plaintiff in each case asks for a declaration that the auction sale and the conveyance are both void. Giving effect to this contention means that the leases in favour of Barsi Mills remain live leases and Barsi Mills continue to be the tenant of the lands. If this is the position, the suits for possession are premature because the leases for 99 years have not yet run out. Further, the declaration asked for cannot be made in the absence of the liquidator representing Barsi Mills, but Barsi Mills have not been impleaded in the suits. It is well known that a company until it is dissolved retains its distinct entity, though in the case of a company in liquidation the administration of its affairs passes to the liquidator Clearly therefore these suits for possession are not maintainable. 5. On the merits also, the suits are bound to fail. The appellant contention is that the auction sale and the conveyance were void in view of Section 27, 28 and 63 of the 1948 Act. Section 27 prohibits sub-division, sub-letting and assignment of land by a tenant and any such act in violation of the provisions of this section makes the tenancy "liable to termination". Section 28 bars attachment, seizure or sale in execution of a decree or order by civil court of any interest in the land held by the tenant. Section 63, as it stood at the relevant time, barred transfer of land in favour of a person who was not an agriculturist unless sanctioned by the prescribed authority. It will be seen that any act contrary to the provisions of Section 27 does not ipso facto terminate the tenancy but only makes the tenancy liable to termination. It is not claimed that the tenancy held by Barsi Mills was terminated before the suit was instituted. 6. Apart from this, Section 88(1)(b) of the 1948 Act makes it clear that the aforesaid provisions could have no manner of application. Section 88, so far as it is relevant, is in these terms : Section 88 (1) : Nothing in the foregoing provisions of this Act shall apply - (a) * * * (b) to lands held on lease for the benefit of an industrial or commercial undertaking; * * * There is no dispute that the lands in question were held on lease for the benefit of Barsi Mills which was an industrial undertaking. Section 88 remained in force from the time the 1948 Act came into operation till August 1, 1956 when it was replaced by a new section introduced by the Amendment Act No. XIII of 1956. The auction sale and the conveyance having taken place before August 1, 1956, Sections 27, 28 and 63 of the Act did not apply to the lands in dispute which were held on lease by Barsi Mills. Mr. Patel for the appellants argued that as the respondent Mills were using the lands largely for agricultural and not industrial purposes, Section 88(1)(b) itself had no application. Admittedly, the respondent Mills had built a few structures on the lands and used a large part of the remaining area for agricultural purposes. It is difficult to see why a land held ton lease by an industrial or commercial undertaking, if used for agricultural purposes, would not be land held for the benefit of such industrial or commercial undertaking. But apart from this, there is an obvious answer to this contention as pointed out by Counsel for the respondents. The lands in question were given in lease of Barsi Mills in 1943 when the Bombay Tenancy Act, 1939 was in operation. That Act defined land as meaning land which was used for agricultural purposes including, inter alia, the sites of farm buildings appurtenant thereto. The definition of land in the 1948 Act, so far as it is material for the present purpose, is :"Land" means land which is used for agricultural purposes, and includes ................. (a) the sites of farm buildings appurtenant to land used for agricultural purposes, and (b) the sites of dwelling houses occupied by agriculturists, agricultural labourers or artisans and land appurtenant to such dwelling houses. * * * Therefore, when Section 88(1)(b) speaks of lands held on lease for the benefit of an industrial or commercial undertaking it means lands used for agricultural purposes held on lease by an industrial or commercial undertaking. Section 88(1)(b) excluded inter alia the application of Section 27, 28 and 63 of the Act to lands used for agricultural purposes if such lands are held by an industrial or commercial undertaking as lessee. Thus it is plain that lands used for agricultural purposes by an industrial or commercial undertaking are directly covered by Section 88(1) (b). It is not necessary to refer to the proviso to section 43C which was inserted in the principal Act by the Amending Act XIII of 1956. The auction sale and the conveyance having taken place long before the proviso was engrafted cannot be affected by it. | 0[ds]Therefore, when Section 88(1)(b) speaks of lands held on lease for the benefit of an industrial or commercial undertaking it means lands used for agricultural purposes held on lease by an industrial or commercial undertaking. Section 88(1)(b) excluded inter alia the application of Section 27, 28 and 63 of the Act to lands used for agricultural purposes if such lands are held by an industrial or commercial undertaking as lessee. Thus it is plain that lands used for agricultural purposes by an industrial or commercial undertaking are directly covered by Section 88(1) (b). It is not necessary to refer to the proviso to section 43C which was inserted in the principal Act by the Amending Act XIII of 1956. The auction sale and the conveyance having taken place long before the proviso was engrafted cannot be affected by it. | 0 | 1,746 | 168 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
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nor was there any law prohibiting such transfers, and (2) the lands in dispute were held on lease for the benefit of an industrial undertaking, namely Barsi Mills, within the meaning of Section 88(1)(b) of the 1948 Act; Section 88 specifies the lands and areas to which the 1948 Act did not apply. 3. Mr. Patel, learned for the appellants, raised two contentions : (1) the lands are agricultural lands and as such Section 88(1)(b) which excluded from the operation of the 1948 Act lands held on lease for the benefit of an industrial or commercial undertaking has no application, and (2) having regard to the proviso to Section 43C of the 1948 Act the auction sale and the subsequent assignment of the leasehold rights were void.4. Before we proceed to consider the merits of these contentions, it seems to us that the suits for possession must fail on a preliminary ground, as urged by Mr. Bal, Counsel for the respondents. In the plaint the plaintiff in each case asks for a declaration that the auction sale and the conveyance are both void. Giving effect to this contention means that the leases in favour of Barsi Mills remain live leases and Barsi Mills continue to be the tenant of the lands. If this is the position, the suits for possession are premature because the leases for 99 years have not yet run out. Further, the declaration asked for cannot be made in the absence of the liquidator representing Barsi Mills, but Barsi Mills have not been impleaded in the suits. It is well known that a company until it is dissolved retains its distinct entity, though in the case of a company in liquidation the administration of its affairs passes to the liquidator Clearly therefore these suits for possession are not maintainable. 5. On the merits also, the suits are bound to fail. The appellant contention is that the auction sale and the conveyance were void in view of Section 27, 28 and 63 of the 1948 Act. Section 27 prohibits sub-division, sub-letting and assignment of land by a tenant and any such act in violation of the provisions of this section makes the tenancy "liable to termination". Section 28 bars attachment, seizure or sale in execution of a decree or order by civil court of any interest in the land held by the tenant. Section 63, as it stood at the relevant time, barred transfer of land in favour of a person who was not an agriculturist unless sanctioned by the prescribed authority. It will be seen that any act contrary to the provisions of Section 27 does not ipso facto terminate the tenancy but only makes the tenancy liable to termination. It is not claimed that the tenancy held by Barsi Mills was terminated before the suit was instituted. 6. Apart from this, Section 88(1)(b) of the 1948 Act makes it clear that the aforesaid provisions could have no manner of application. Section 88, so far as it is relevant, is in these terms : Section 88 (1) : Nothing in the foregoing provisions of this Act shall apply - (a) * * * (b) to lands held on lease for the benefit of an industrial or commercial undertaking; * * * There is no dispute that the lands in question were held on lease for the benefit of Barsi Mills which was an industrial undertaking. Section 88 remained in force from the time the 1948 Act came into operation till August 1, 1956 when it was replaced by a new section introduced by the Amendment Act No. XIII of 1956. The auction sale and the conveyance having taken place before August 1, 1956, Sections 27, 28 and 63 of the Act did not apply to the lands in dispute which were held on lease by Barsi Mills. Mr. Patel for the appellants argued that as the respondent Mills were using the lands largely for agricultural and not industrial purposes, Section 88(1)(b) itself had no application. Admittedly, the respondent Mills had built a few structures on the lands and used a large part of the remaining area for agricultural purposes. It is difficult to see why a land held ton lease by an industrial or commercial undertaking, if used for agricultural purposes, would not be land held for the benefit of such industrial or commercial undertaking. But apart from this, there is an obvious answer to this contention as pointed out by Counsel for the respondents. The lands in question were given in lease of Barsi Mills in 1943 when the Bombay Tenancy Act, 1939 was in operation. That Act defined land as meaning land which was used for agricultural purposes including, inter alia, the sites of farm buildings appurtenant thereto. The definition of land in the 1948 Act, so far as it is material for the present purpose, is :"Land" means land which is used for agricultural purposes, and includes ................. (a) the sites of farm buildings appurtenant to land used for agricultural purposes, and (b) the sites of dwelling houses occupied by agriculturists, agricultural labourers or artisans and land appurtenant to such dwelling houses. * * * Therefore, when Section 88(1)(b) speaks of lands held on lease for the benefit of an industrial or commercial undertaking it means lands used for agricultural purposes held on lease by an industrial or commercial undertaking. Section 88(1)(b) excluded inter alia the application of Section 27, 28 and 63 of the Act to lands used for agricultural purposes if such lands are held by an industrial or commercial undertaking as lessee. Thus it is plain that lands used for agricultural purposes by an industrial or commercial undertaking are directly covered by Section 88(1) (b). It is not necessary to refer to the proviso to section 43C which was inserted in the principal Act by the Amending Act XIII of 1956. The auction sale and the conveyance having taken place long before the proviso was engrafted cannot be affected by it.
### Response:
0
### Explanation:
Therefore, when Section 88(1)(b) speaks of lands held on lease for the benefit of an industrial or commercial undertaking it means lands used for agricultural purposes held on lease by an industrial or commercial undertaking. Section 88(1)(b) excluded inter alia the application of Section 27, 28 and 63 of the Act to lands used for agricultural purposes if such lands are held by an industrial or commercial undertaking as lessee. Thus it is plain that lands used for agricultural purposes by an industrial or commercial undertaking are directly covered by Section 88(1) (b). It is not necessary to refer to the proviso to section 43C which was inserted in the principal Act by the Amending Act XIII of 1956. The auction sale and the conveyance having taken place long before the proviso was engrafted cannot be affected by it.
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Center for PIL & Others & Another Vs. Union of India & Others | 1. We have heard learned counsel for the parties.2. We are informed, that in furtherance of the Motion Bench order dated 6th January, 2017, publication was duly made in two leading newspapers in Malaysia, and yet, neither of the four accused mentioned in paragraph 5 of the order dated 6th January, 2017, namely, accused Nos. (iii) Mr. Augustus Ralph Marshall, (iv) Mr. Ananda Krishna Tatparanandam, (vi) M/s. Astro All Asia Networks Limited and (vii) M/s. Maxis Communications Berhad, Malaysia, have responded to the summons issued to them, nor have they entered appearance before this Court, for seeking modification of the above order (dated 6th January, 2017).3. The order dated 6th January, 2017, suggested a course of action, that may be adopted for procuring the attendance of the above-mentioned accused persons. It is now submitted, that the suggested manner may not be appropriate. We agree with the submissions. We are therefore of the view, that it is necessary to clearly express, for the understanding of the accused concerned, that some other appropriate order for achieving the purpose, besides the one suggested by our order dated 6th January, 2017, may also be adopted. In such a situation also, in case, the accused do not respond or enter appearance, it will not be open to any of them to raise any objection, with reference to any monetary loss, that may be caused, as a result of our order.4. In order to demonstrate the position highlighted during the course of hearing, on behalf of M/s. Aircel Ltd. and M/s. Dishnet Wireless Ltd., learned counsel seeks a short adjournment, to enable him to obtain instructions, and place further material on the record of this case. | 1[ds]We agree with the submissions. We are therefore of the view, that it is necessary to clearly express, for the understanding of the accused concerned, that some other appropriate order for achieving the purpose, besides the one suggested by our order dated 6th January, 2017, may also be adopted. In such a situation also, in case, the accused do not respond or enter appearance, it will not be open to any of them to raise any objection, with reference to any monetary loss, that may be caused, as a result of our order. | 1 | 340 | 112 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
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1. We have heard learned counsel for the parties.2. We are informed, that in furtherance of the Motion Bench order dated 6th January, 2017, publication was duly made in two leading newspapers in Malaysia, and yet, neither of the four accused mentioned in paragraph 5 of the order dated 6th January, 2017, namely, accused Nos. (iii) Mr. Augustus Ralph Marshall, (iv) Mr. Ananda Krishna Tatparanandam, (vi) M/s. Astro All Asia Networks Limited and (vii) M/s. Maxis Communications Berhad, Malaysia, have responded to the summons issued to them, nor have they entered appearance before this Court, for seeking modification of the above order (dated 6th January, 2017).3. The order dated 6th January, 2017, suggested a course of action, that may be adopted for procuring the attendance of the above-mentioned accused persons. It is now submitted, that the suggested manner may not be appropriate. We agree with the submissions. We are therefore of the view, that it is necessary to clearly express, for the understanding of the accused concerned, that some other appropriate order for achieving the purpose, besides the one suggested by our order dated 6th January, 2017, may also be adopted. In such a situation also, in case, the accused do not respond or enter appearance, it will not be open to any of them to raise any objection, with reference to any monetary loss, that may be caused, as a result of our order.4. In order to demonstrate the position highlighted during the course of hearing, on behalf of M/s. Aircel Ltd. and M/s. Dishnet Wireless Ltd., learned counsel seeks a short adjournment, to enable him to obtain instructions, and place further material on the record of this case.
### Response:
1
### Explanation:
We agree with the submissions. We are therefore of the view, that it is necessary to clearly express, for the understanding of the accused concerned, that some other appropriate order for achieving the purpose, besides the one suggested by our order dated 6th January, 2017, may also be adopted. In such a situation also, in case, the accused do not respond or enter appearance, it will not be open to any of them to raise any objection, with reference to any monetary loss, that may be caused, as a result of our order.
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C.C.E., Bhubaneswar-1 Vs. M/S. Champdany Industries Ltd | to (a) or (b), they shall be classified under the heading which occurs last in the numerical order among those which equally merit consideration." 45. From a perusal of the said Rules it appears that the dominant intention in the said Rule, especially clause (a) thereof is that the heading which provides the most specific description shall be preferred to the heading providing a more general description. 46. In the case in hand, following the said interpretation, the goods manufactured by the respondent-company are to be classified as jute carpet or jute floor coverings. 47. Clause (b) and Clause(c) of the said Rule 3 will apply only in those cases which cannot be classified under clause (a). Since in the instant case following the dominant intention of clause(a), the goods manufactured by the respondent-company can be classified, clause (b) and clause(c)of the said Rule need not be pressed into service. 48. Reference in this connection may be made to a three-Judge Bench decision of this Court in Commissioner of Central Excise, Nagpur Vs. Simplex Mills Co. Ltd. - (2005) 3 SCC 51 . In paragraph 11 of the said report, the purport of the said Rule has been discussed. While discussing the said Rule, this Court held that the Rule having been framed pursuant to the powers under Section 2 of the Central Excise Tariff Act, 1985 is statutory in nature. Learned Judges also made it clear that for the purposes of classification primacy should be attached to the section and chapter notes along with terms of the headings. If on application of Section and Chapter Notes, `no clear picture emerges then only can one resort to those rules. 49. In the instant case from the above discussion, it is clear from a perusal of the Chapter and Section Note, that the goods manufactured by the respondent-company can be classified as jute carpets/jute floor coverings. Thus, the argument on behalf of the Revenue cannot be accepted. 50. Apart from that, the point on Rule 3 which has been argued by the learned counsel for the Revenue was not part of its case in the show-cause notice. It is well settled that unless the foundation of the case is made out in the show- cause notice, Revenue cannot in Court argue a case not made out in its show-cause notice. {See: Commissioner of Customs, Mumbai Vs. Toyo Engineering India Limited - (2006) 7 SCC 592 , para 16. 51. Similar view was expressed by this Court in the case of Commissioner of Central Excise, Nagpur Vs. Ballarpur Industries Ltd. - (2007) 8 SCC 89 . In paragraph 27 of the said report, learned Judges made it clear that if there is no invocation of the concerned rules in the show-cause notice, it would not be open to the Commissioner to invoke the said Rule. 52. Learned counsel for the Revenue also relied on some judgments.53. It relied on the case of Oswal Agro Mills Ltd. and Ors. Vs. Collector of Central Excise and Ors. - 1993 Supp. (3) SCC 716. In that case the Court allowed the appeal filed by the assessee and did not accept the interpretation of the Revenue on `Toilet Soap. Learned judges relied on the age old principle that where the words of the statute are plain and clear, there is no room for applying any of the canons of interpretation which are merely presumption in cases of ambiguity in the statute. 54. Applying the said principle in the present case, we hold that the ratio in Oswal Agro (supra) does not at all advance the case of the Revenue. Apart from that the said decision was rendered under the old Tariff Act when there was nothing like Chapter Note and Section Note. Oswal Agro (supra) has no application here. 55. Learned counsel relied also on the decision of this Court in Novopan India Ltd, Hyderabad Vs. Collector of Central Excise and Customs, Hyderabad - 1994 Supp. (3) SCC 606. In that case, the Court interpreted the provision of Old Tariff Act with regard to exemption and held in paragraph 16 that a person invoking an exemption provision must establish clearly that he is covered by the said provision. In case of doubt or ambiguity, the benefit of exemption cannot be claimed by the assessee. 56. In the present case, those questions are not at all relevant as we are concerned with the provisions of the new Central Excise Act of 1985 which came into force on 22.2.1986 with Section Notes, Chapter Notes, Headings and sub-headings. Therefore, the ratio in Novopan (supra) has no relevance in the facts of the present case. 57. Learned counsel also relied on the decision of this Court in Hindustan Poles Corporation Vs. Commissioner of Cental Excise, Calcutta - (2006) 4 SCC 85 . In fact the judgment in that case does not at all advance the case of the respondent. In paragraph 39 of the judgment it has been held that the residuary entry is meant only for those categories of goods which clearly fall outside the ambit of specified entries and unless the Department can establish that the goods in question can, by no conceivable process of reasoning, be brought under any of the tariff items, resort cannot be had to the residuary item. 58. Following the said principle, as we must, in the instant case, the goods manufactured by the respondent-company fall clearly under the specified items as discussed above. 59. Revenue also relied on another decision of this Court in Kemrock Industries & Exports Ltd. Vs. Commissioner of Central Excise, Vadodara - (2007) 9 SCC 52 , for the purpose of essentiality test. As noted above, there is no whisper of the essentiality test in the show-cause notice. As no case of essentiality test has been made out in the show-cause notice, the same cannot be argued for the first time before this Court. As such the judgment in Kemrock (supra) on essentiality test is of no avail. | 0[ds]37. Therefore, the mere fact that the surface of the carpet is polypropylene fiber, it does not cease to become jute carpet. So this Court is constrained to hold that this argument by the Revenue on the basis of surface or essentiality test is erroneous. | 0 | 4,877 | 54 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
### Input:
to (a) or (b), they shall be classified under the heading which occurs last in the numerical order among those which equally merit consideration." 45. From a perusal of the said Rules it appears that the dominant intention in the said Rule, especially clause (a) thereof is that the heading which provides the most specific description shall be preferred to the heading providing a more general description. 46. In the case in hand, following the said interpretation, the goods manufactured by the respondent-company are to be classified as jute carpet or jute floor coverings. 47. Clause (b) and Clause(c) of the said Rule 3 will apply only in those cases which cannot be classified under clause (a). Since in the instant case following the dominant intention of clause(a), the goods manufactured by the respondent-company can be classified, clause (b) and clause(c)of the said Rule need not be pressed into service. 48. Reference in this connection may be made to a three-Judge Bench decision of this Court in Commissioner of Central Excise, Nagpur Vs. Simplex Mills Co. Ltd. - (2005) 3 SCC 51 . In paragraph 11 of the said report, the purport of the said Rule has been discussed. While discussing the said Rule, this Court held that the Rule having been framed pursuant to the powers under Section 2 of the Central Excise Tariff Act, 1985 is statutory in nature. Learned Judges also made it clear that for the purposes of classification primacy should be attached to the section and chapter notes along with terms of the headings. If on application of Section and Chapter Notes, `no clear picture emerges then only can one resort to those rules. 49. In the instant case from the above discussion, it is clear from a perusal of the Chapter and Section Note, that the goods manufactured by the respondent-company can be classified as jute carpets/jute floor coverings. Thus, the argument on behalf of the Revenue cannot be accepted. 50. Apart from that, the point on Rule 3 which has been argued by the learned counsel for the Revenue was not part of its case in the show-cause notice. It is well settled that unless the foundation of the case is made out in the show- cause notice, Revenue cannot in Court argue a case not made out in its show-cause notice. {See: Commissioner of Customs, Mumbai Vs. Toyo Engineering India Limited - (2006) 7 SCC 592 , para 16. 51. Similar view was expressed by this Court in the case of Commissioner of Central Excise, Nagpur Vs. Ballarpur Industries Ltd. - (2007) 8 SCC 89 . In paragraph 27 of the said report, learned Judges made it clear that if there is no invocation of the concerned rules in the show-cause notice, it would not be open to the Commissioner to invoke the said Rule. 52. Learned counsel for the Revenue also relied on some judgments.53. It relied on the case of Oswal Agro Mills Ltd. and Ors. Vs. Collector of Central Excise and Ors. - 1993 Supp. (3) SCC 716. In that case the Court allowed the appeal filed by the assessee and did not accept the interpretation of the Revenue on `Toilet Soap. Learned judges relied on the age old principle that where the words of the statute are plain and clear, there is no room for applying any of the canons of interpretation which are merely presumption in cases of ambiguity in the statute. 54. Applying the said principle in the present case, we hold that the ratio in Oswal Agro (supra) does not at all advance the case of the Revenue. Apart from that the said decision was rendered under the old Tariff Act when there was nothing like Chapter Note and Section Note. Oswal Agro (supra) has no application here. 55. Learned counsel relied also on the decision of this Court in Novopan India Ltd, Hyderabad Vs. Collector of Central Excise and Customs, Hyderabad - 1994 Supp. (3) SCC 606. In that case, the Court interpreted the provision of Old Tariff Act with regard to exemption and held in paragraph 16 that a person invoking an exemption provision must establish clearly that he is covered by the said provision. In case of doubt or ambiguity, the benefit of exemption cannot be claimed by the assessee. 56. In the present case, those questions are not at all relevant as we are concerned with the provisions of the new Central Excise Act of 1985 which came into force on 22.2.1986 with Section Notes, Chapter Notes, Headings and sub-headings. Therefore, the ratio in Novopan (supra) has no relevance in the facts of the present case. 57. Learned counsel also relied on the decision of this Court in Hindustan Poles Corporation Vs. Commissioner of Cental Excise, Calcutta - (2006) 4 SCC 85 . In fact the judgment in that case does not at all advance the case of the respondent. In paragraph 39 of the judgment it has been held that the residuary entry is meant only for those categories of goods which clearly fall outside the ambit of specified entries and unless the Department can establish that the goods in question can, by no conceivable process of reasoning, be brought under any of the tariff items, resort cannot be had to the residuary item. 58. Following the said principle, as we must, in the instant case, the goods manufactured by the respondent-company fall clearly under the specified items as discussed above. 59. Revenue also relied on another decision of this Court in Kemrock Industries & Exports Ltd. Vs. Commissioner of Central Excise, Vadodara - (2007) 9 SCC 52 , for the purpose of essentiality test. As noted above, there is no whisper of the essentiality test in the show-cause notice. As no case of essentiality test has been made out in the show-cause notice, the same cannot be argued for the first time before this Court. As such the judgment in Kemrock (supra) on essentiality test is of no avail.
### Response:
0
### Explanation:
37. Therefore, the mere fact that the surface of the carpet is polypropylene fiber, it does not cease to become jute carpet. So this Court is constrained to hold that this argument by the Revenue on the basis of surface or essentiality test is erroneous.
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S. Abdul Khader Saheb Vs. The Mysore Revenue Appellate Tribunal,Bangalore & Ors | that no decision was given in Thippeswamys case that the Bellary scheme provides for a total exclusion of all operators on the nationalised routes. He has also sought to distinguish that case by pointing out that the controversy there was confined to the question whether the appellant was an existing permit holder on the inter-State route. It has further been stated that in the present case no permit has so far been issued to the State Corporation because it has failed to comply with certain provisions and in particular with the requirement of Section 20 of the Road Transport Corporations Act 1950. It may be that the facts are somewhat different here. The view which the High Court in the present case took was that after the Bellary Scheme had come into force the operators other than the State Transport Undertaking were totally excluded. In Thippeswamys case, AIR 1972 SC 1674 (supra) also it is clear from the portion already extracted from the judgment of this Court that according to the scheme all operators excepting those mentioned in the scheme are excluded from the nationalised routes. The two exceptions which have been made are only with regard to the inter-district operators and the existing permit holders on inter-State routes. Mr. Setalvad does not claim that the appellant falls within either of these categories. It is, therefore, not possible to accede to his contention that because the scheme merely provides for partial exclusion it is open to the authorities concerned to issue a permit for the route overlapping the inter-State route. 7. The next point on which a great deal of emphasis has been laid on behalf of the appellant is that an inter-State route comes into existence by virtue of an agreement between the States through which the route passes. The main provisions in that respect are to be found in Section 63 of the Act. Any scheme of nationalisation of a route by a State, as approved under Section 68-D, cannot override the inter-State agreements in respect of the inter-State routes. This Court has in T. N. Raghunatha Reddy v. Mysore State Transport Authority, (1970) 3 SCR 780 = (AIR 1971 SC 1662 ) answered this question in the negative. It has been held that the inter-State agreement is not law and to hold that an inter-State agreement overrides Chapter IV-A would be to completely disregard the provisions of Section 68-B of the Act. In other words a scheme of nationalisation approved under Section 68-D would prevail over in inter-State agreement in respect of an inter-State route. 8. Sub-section (3) of Section 68-D of the Act has also been relied upon by Mr. Setalvad. According to that provision the scheme as approved or modified shall be published in the official gazette and the same shall thereupon become final. The proviso, however, says that no such scheme which relates to any inter-State route shall be deemed to be an approved scheme unless it has been published in the official gazette with the previous approval of the Central Government. No scheme in the present case has been approved under the proviso relating to the inter-State route in question. We are unable to see how the proviso to Section 68-D (3) can be of any avail to the appellant. The aforesaid provision becomes material only when a scheme covers an inter-State route. The Bellary scheme provides for nationalisation of an Intra-State route and not an inter-State route and the aforesaid provision can have no applicability. 9. Although respondent No. 7 has not appealed, counsel appearing for him has called attention to the observations of this Court in B. H. Aswathanarayan Singh v. State of Mysore, (1966) 1 SCR 87 = (AIR 1965 SC 1848 ) that an inter-State route is one in which one of the termini is in one State and the other in another State. Where both the termini are in one State the question of an inter-State route does not arise. If part of the scheme covers routes which continue beyond the State and connect various points in the State of Mysore with those in the other State it does not make the scheme one connected with inter-State route. It is sought to be argued from his that even if Bellary-Chintakunta route which is shown as item 34 in the Bellary Scheme has been nationalised it does not make the scheme one connected with inter-State route. Stress has been laid on the example given that the Grand Trunk Road runs from Calcutta to Amritsar and passes through many States and any portion of it within a State can be a route for purposes of stage carriage but that would not make such a route a part of an inter-State route even though it lies on the road which runs through many States. 10. The above argument can possibly have no validity so far as the present case is concerned. The scheme which was under consideration in the decision relied upon was in respect of an intra-State route. It appears to have been argued that as the scheme was concerned with an inter-State route the approval of the Central Government was necessary as required under the proviso to Section 68-D (3) of the Act. This Court held that since the termini were within the State of Mysore the scheme did not deal with an inter-State route at all and no question arose of the applicability of the proviso to Section 68-D (3).In the present case there is no scheme of nationalisation relating to the inter-State route from Bellary to Manthralaya. The Bellary Scheme is confined to the intra-State routes, one of those being the Bellary-Chintakunta route. It may be that that portion overlaps the inter-State route from Bellary to Manthralaya but so long as it is an intra-State route it could be nationalised by the State of Mysore under the provisions of Section 68-D. That having been done the decision in Thippeswamys case, AIR 1972 SC 1674 will appositely apply. | 0[ds]8. Sub-section (3) of Section 68-D of the Act has also been relied upon by Mr. Setalvad. According to that provision the scheme as approved or modified shall be published in the official gazette and the same shall thereupon become final. The proviso, however, says that no such scheme which relates to any inter-State route shall be deemed to be an approved scheme unless it has been published in the official gazette with the previous approval of the Central Government. No scheme in the present case has been approved under the proviso relating to the inter-State route in question. We are unable to see how the proviso to Section 68-D (3) can be of any avail to the appellant. The aforesaid provision becomes material only when a scheme covers an inter-State route. The Bellary scheme provides for nationalisation of an Intra-State route and not an inter-State route and the aforesaid provision can have no applicability9. Although respondent No. 7 has not appealed, counsel appearing for him has called attention to the observations of this Court in B. H. Aswathanarayan Singh v. State of Mysore, (1966) 1 SCR 87 = (AIR 1965 SC 1848 ) that an inter-State route is one in which one of the termini is in one State and the other in another State. Where both the termini are in one State the question of an inter-State route does not arise. If part of the scheme covers routes which continue beyond the State and connect various points in the State of Mysore with those in the other State it does not make the scheme one connected with inter-State route. It is sought to be argued from his that even if Bellary-Chintakunta route which is shown as item 34 in the Bellary Scheme has been nationalised it does not make the scheme one connected with inter-State route. Stress has been laid on the example given that the Grand Trunk Road runs from Calcutta to Amritsar and passes through many States and any portion of it within a State can be a route for purposes of stage carriage but that would not make such a route a part of an inter-State route even though it lies on the road which runs through many States10. The above argument can possibly have no validity so far as the present case is concerned. The scheme which was under consideration in the decision relied upon was in respect of an intra-State route. It appears to have been argued that as the scheme was concerned with an inter-State route the approval of the Central Government was necessary as required under the proviso to Section 68-D (3) of the Act. This Court held that since the termini were within the State of Mysore the scheme did not deal with an inter-State route at all and no question arose of the applicability of the proviso to Section 68-D (3).In the present case there is no scheme of nationalisation relating to the inter-State route from Bellary to Manthralaya. The Bellary Scheme is confined to the intra-State routes, one of those being the Bellary-Chintakunta route. It may be that that portion overlaps the inter-State route from Bellary to Manthralaya but so long as it is an intra-State route it could be nationalised by the State of Mysore under the provisions of Section 68-D. That having been done the decision in Thippeswamys case, AIR 1972 SC 1674 will appositely apply. | 0 | 2,269 | 612 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
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that no decision was given in Thippeswamys case that the Bellary scheme provides for a total exclusion of all operators on the nationalised routes. He has also sought to distinguish that case by pointing out that the controversy there was confined to the question whether the appellant was an existing permit holder on the inter-State route. It has further been stated that in the present case no permit has so far been issued to the State Corporation because it has failed to comply with certain provisions and in particular with the requirement of Section 20 of the Road Transport Corporations Act 1950. It may be that the facts are somewhat different here. The view which the High Court in the present case took was that after the Bellary Scheme had come into force the operators other than the State Transport Undertaking were totally excluded. In Thippeswamys case, AIR 1972 SC 1674 (supra) also it is clear from the portion already extracted from the judgment of this Court that according to the scheme all operators excepting those mentioned in the scheme are excluded from the nationalised routes. The two exceptions which have been made are only with regard to the inter-district operators and the existing permit holders on inter-State routes. Mr. Setalvad does not claim that the appellant falls within either of these categories. It is, therefore, not possible to accede to his contention that because the scheme merely provides for partial exclusion it is open to the authorities concerned to issue a permit for the route overlapping the inter-State route. 7. The next point on which a great deal of emphasis has been laid on behalf of the appellant is that an inter-State route comes into existence by virtue of an agreement between the States through which the route passes. The main provisions in that respect are to be found in Section 63 of the Act. Any scheme of nationalisation of a route by a State, as approved under Section 68-D, cannot override the inter-State agreements in respect of the inter-State routes. This Court has in T. N. Raghunatha Reddy v. Mysore State Transport Authority, (1970) 3 SCR 780 = (AIR 1971 SC 1662 ) answered this question in the negative. It has been held that the inter-State agreement is not law and to hold that an inter-State agreement overrides Chapter IV-A would be to completely disregard the provisions of Section 68-B of the Act. In other words a scheme of nationalisation approved under Section 68-D would prevail over in inter-State agreement in respect of an inter-State route. 8. Sub-section (3) of Section 68-D of the Act has also been relied upon by Mr. Setalvad. According to that provision the scheme as approved or modified shall be published in the official gazette and the same shall thereupon become final. The proviso, however, says that no such scheme which relates to any inter-State route shall be deemed to be an approved scheme unless it has been published in the official gazette with the previous approval of the Central Government. No scheme in the present case has been approved under the proviso relating to the inter-State route in question. We are unable to see how the proviso to Section 68-D (3) can be of any avail to the appellant. The aforesaid provision becomes material only when a scheme covers an inter-State route. The Bellary scheme provides for nationalisation of an Intra-State route and not an inter-State route and the aforesaid provision can have no applicability. 9. Although respondent No. 7 has not appealed, counsel appearing for him has called attention to the observations of this Court in B. H. Aswathanarayan Singh v. State of Mysore, (1966) 1 SCR 87 = (AIR 1965 SC 1848 ) that an inter-State route is one in which one of the termini is in one State and the other in another State. Where both the termini are in one State the question of an inter-State route does not arise. If part of the scheme covers routes which continue beyond the State and connect various points in the State of Mysore with those in the other State it does not make the scheme one connected with inter-State route. It is sought to be argued from his that even if Bellary-Chintakunta route which is shown as item 34 in the Bellary Scheme has been nationalised it does not make the scheme one connected with inter-State route. Stress has been laid on the example given that the Grand Trunk Road runs from Calcutta to Amritsar and passes through many States and any portion of it within a State can be a route for purposes of stage carriage but that would not make such a route a part of an inter-State route even though it lies on the road which runs through many States. 10. The above argument can possibly have no validity so far as the present case is concerned. The scheme which was under consideration in the decision relied upon was in respect of an intra-State route. It appears to have been argued that as the scheme was concerned with an inter-State route the approval of the Central Government was necessary as required under the proviso to Section 68-D (3) of the Act. This Court held that since the termini were within the State of Mysore the scheme did not deal with an inter-State route at all and no question arose of the applicability of the proviso to Section 68-D (3).In the present case there is no scheme of nationalisation relating to the inter-State route from Bellary to Manthralaya. The Bellary Scheme is confined to the intra-State routes, one of those being the Bellary-Chintakunta route. It may be that that portion overlaps the inter-State route from Bellary to Manthralaya but so long as it is an intra-State route it could be nationalised by the State of Mysore under the provisions of Section 68-D. That having been done the decision in Thippeswamys case, AIR 1972 SC 1674 will appositely apply.
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0
### Explanation:
8. Sub-section (3) of Section 68-D of the Act has also been relied upon by Mr. Setalvad. According to that provision the scheme as approved or modified shall be published in the official gazette and the same shall thereupon become final. The proviso, however, says that no such scheme which relates to any inter-State route shall be deemed to be an approved scheme unless it has been published in the official gazette with the previous approval of the Central Government. No scheme in the present case has been approved under the proviso relating to the inter-State route in question. We are unable to see how the proviso to Section 68-D (3) can be of any avail to the appellant. The aforesaid provision becomes material only when a scheme covers an inter-State route. The Bellary scheme provides for nationalisation of an Intra-State route and not an inter-State route and the aforesaid provision can have no applicability9. Although respondent No. 7 has not appealed, counsel appearing for him has called attention to the observations of this Court in B. H. Aswathanarayan Singh v. State of Mysore, (1966) 1 SCR 87 = (AIR 1965 SC 1848 ) that an inter-State route is one in which one of the termini is in one State and the other in another State. Where both the termini are in one State the question of an inter-State route does not arise. If part of the scheme covers routes which continue beyond the State and connect various points in the State of Mysore with those in the other State it does not make the scheme one connected with inter-State route. It is sought to be argued from his that even if Bellary-Chintakunta route which is shown as item 34 in the Bellary Scheme has been nationalised it does not make the scheme one connected with inter-State route. Stress has been laid on the example given that the Grand Trunk Road runs from Calcutta to Amritsar and passes through many States and any portion of it within a State can be a route for purposes of stage carriage but that would not make such a route a part of an inter-State route even though it lies on the road which runs through many States10. The above argument can possibly have no validity so far as the present case is concerned. The scheme which was under consideration in the decision relied upon was in respect of an intra-State route. It appears to have been argued that as the scheme was concerned with an inter-State route the approval of the Central Government was necessary as required under the proviso to Section 68-D (3) of the Act. This Court held that since the termini were within the State of Mysore the scheme did not deal with an inter-State route at all and no question arose of the applicability of the proviso to Section 68-D (3).In the present case there is no scheme of nationalisation relating to the inter-State route from Bellary to Manthralaya. The Bellary Scheme is confined to the intra-State routes, one of those being the Bellary-Chintakunta route. It may be that that portion overlaps the inter-State route from Bellary to Manthralaya but so long as it is an intra-State route it could be nationalised by the State of Mysore under the provisions of Section 68-D. That having been done the decision in Thippeswamys case, AIR 1972 SC 1674 will appositely apply.
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RAMKHILADI Vs. THE UNITED INDIA INSURANCE COMPANY | present case, the parties are governed by the contract of insurance and under the contract of insurance the liability of the insurance company would be qua third party only. In the present case, as observed hereinabove, the deceased cannot be said to be a third party with respect to the insured vehicle bearing registration No. RJ 02 SA 7811. There cannot be any dispute that the liability of the insurance company would be as per the terms and conditions of the contract of insurance. As held by this Court in the case of Dhanraj (supra), an insurance policy covers the liability incurred by the insured in respect of death of or bodily injury to any person (including an owner of the goods or his authorized representative) carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle. In the said decision, it is further held by this Court that Section 147 does not require an insurance company to assume risk for death or bodily injury to the owner of the vehicle. 5.6 In view of the above and for the reasons stated above, in the present case, as the claim under Section 163A of the Act was made only against the owner and insurance company of the vehicle which was being driven by the deceased himself as borrower of the vehicle from the owner of the vehicle and he would be in the shoes of the owner, the High Court has rightly observed and held that such a claim was not maintainable and the claimants ought to have joined and/or ought to have made the claim under Section 163A of the Act against the driver, owner and/or the insurance company of the offending vehicle i.e. RJ 29 2M 9223 being a third party to the said vehicle. 5.7 Now, so far as the reliance placed upon by the learned Advocate for the claimants on the decision of this Court in the case of Naveen Kumar (supra), on considering the issue involved in that decision, we are of the opinion that the said decision shall not be applicable to the facts of the case on hand and/or the same shall not be of any assistance to the claimants. In that case, the issue was as to who could be said to be the registered owner of the vehicle and the liability of the owner who sold the vehicle, but his name continued to be as the owner with the registering authority. To that, it was held that the person in whose name the motor vehicle stands registered is the owner of the vehicle for the purpose of the Act. 5.8 However, at the same time, even as per the contract of insurance, in case of personal accident the owner¬driver is entitled to a sum of Rs.1 lakh. Therefore, the deceased, as observed hereinabove, who would be in the shoes of the owner shall be entitled to a sum of Rs.1 lakh, even as per the contract of insurance. However, it is the case on behalf of the original claimants that there is an amendment to the 2 nd Schedule and a fixed amount of Rs.5 lakh has been specified in case of death and therefore the claimants shall be entitled to Rs.5 lakh. The same cannot be accepted. In the present case, the accident took place in the year 2006 and even the Judgment and Award was passed by the learned Tribunal in the year 2009, and the impugned Judgment and Order has been passed by the High Court in 10.05.2018, i.e. much prior to the amendment in the 2 nd Schedule. In the facts and circumstance of the present case, the claimants shall not be entitled to the benefit of the amendment to the 2 nd Schedule. At the same time, as observed hereinabove, the claimants shall be entitled to Rs.1 lakh as per the terms of the contract of insurance, the driver being in the shoes of the owner of the vehicle. 5.9 Now, so far as the submission made on behalf of the claimants that in a claim under Section 163A of the Act mere use of the vehicle is enough and despite the compensation claimed by the heirs of the owner of the motorcycle which was involved in the accident resulting in his death, the claim under Section 163A of the Act would be maintainable is concerned, in view of the decision of this Court in Rajni Devi (supra), the aforesaid cannot be accepted. In Rajni Devi (supra), it has been specifically observed and held that the provisions of Section 163A of the Act cannot be said to have any application with regard to an accident wherein the owner of the motor vehicle himself is involved. After considering the decisions of this Court in the cases of Oriental Insurance Co. Ltd. V. Jhuma Saha (2007) 9 SCC 263 ; Dhanraj (supra); National Insurance Co. Ltd. V. Laxmi Narain Dhut (2007) 3 SCC 700 and Premkumari v. Prahlad Dev (2008) 3 SCC 193 , it is ultimately concluded by this Court that the liability under Section 163A of the Act is on the owner of the vehicle as a person cannot be both, a claimant as also a recipient and, therefore, the heirs of the owner could not have maintained the claim in terms of Section 163A of the Act. It is further observed that, for the said purpose, only the terms of the contract of insurance could be taken recourse to. In the recent decision of this Court in the case of Ashalata Bhowmik (supra), it is specifically held by this Court that the parties shall be governed by the terms and conditions of the contract of insurance. Therefore, as per the contract of insurance, the insurance company shall be liable to pay the compensation to a third party and not to the owner, except to the extent of Rs.1 lakh as observed hereinabove. | 1[ds]5.3 While answering the finding recorded by the learned Tribunal on Issue No. 2, it appears that, as such, the learned Tribunal has not at all answered the aforesaid issue. While answering Issue No. 2, there is no specific finding whether the deceased¬driver was in employment of the opponent-owner Bhagwan Sahay or not. Even otherwise, no evidence is led by the claimants to prove that the deceased¬driver was in employment of the opponent¬owner Bhagwan Sahay. Despite the above, while answering Issue No. 4 there is some observation made by the learned Tribunal that the deceased-driver was in employment of the opponent¬owner Bhagwan Sahay, which is not supported by any evidence on record. Under the circumstances, the deceased¬driver cannot be said to be in employment of the opponent¬owner Bhagwan Sahay and, therefore, he can be said to be permissible user and/or borrower of motor vehicle owned by the opponent¬owner Bhagwan Sahay. With these findings, the main question posed for consideration of this Court referred to hereinabove is required to be considered5.4 An identical question came to be considered by this Court in the case of Ningamma (supra). In that case, the deceased was driving a motorcycle which was borrowed from its real owner and met with an accident by dashing against a bullock cart i.e. without involving any other vehicle. The claim petition was filed under Section 163A of the Act by the legal representatives of the deceased against the real owner of the motorcycle which was being driven by the deceased. To that, this Court has observed and held that since the deceased has stepped into the shoes of the owner of the vehicle, Section 163A of the Act cannot apply wherein the owner of the vehicle himself is involved. Consequently, it was held that the legal representatives of the deceased could not have claimed the compensation under Section 163A of the Act. Therefore, as such, in the present case, the claimants could have even claimed the compensation and/or filed the claim petition under Section 163A of the Act against the driver, owner and insurance company of the offending vehicle i.e. motorcycle bearing registration No. RJ 29 2M 9223, being a third party with respect to the offending vehicle. However, no claim under Section 163A was filed against the driver, owner and/or insurance company of the motorcycle bearing registration No. RJ 29 2M 9223. It is an admitted position that the claim under Section 163A of the Act was only against the owner and the insurance company of the motorcycle bearing registration No. RJ 02 SA 7811 which was borrowed by the deceased from the opponent-owner Bhagwan Sahay. Therefore, applying the law laid down by this Court in the case of Ningamma (supra), and as the deceased has stepped into the shoes of the owner of the vehicle bearing registration No. RJ 02 SA 7811, as rightly held by the High Court, the claim petition under Section 163A of the Act against the owner and insurance company of the vehicle bearing registration No. RJ 02 SA 7811 shall not be maintainable. 5.5 It is true that, in a claim under Section 163A of the Act, there is no need for the claimants to plead or establish the negligence and/or that the death in respect of which the claim petition is sought to be established was due to wrongful act, neglect or default of the owner of the vehicle concerned. It is also true that the claim petition under Section 163A of the Act is based on the principle of no fault liability. However, at the same time, the deceased has to be a third party and cannot maintain a claim under Section 163A of the Act against the owner/insurer of the vehicle which is borrowed by him as he will be in the shoes of the owner and he cannot maintain a claim under Section 163A of the Act against the owner and insurer of the vehicle bearing registration No. RJ 02 SA 7811. In the present case, the parties are governed by the contract of insurance and under the contract of insurance the liability of the insurance company would be qua third party only. In the present case, as observed hereinabove, the deceased cannot be said to be a third party with respect to the insured vehicle bearing registration No. RJ 02 SA 7811. There cannot be any dispute that the liability of the insurance company would be as per the terms and conditions of the contract of insurance. As held by this Court in the case of Dhanraj (supra), an insurance policy covers the liability incurred by the insured in respect of death of or bodily injury to any person (including an owner of the goods or his authorized representative) carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle. In the said decision, it is further held by this Court that Section 147 does not require an insurance company to assume risk for death or bodily injury to the owner of the vehicle5.6 In view of the above and for the reasons stated above, in the present case, as the claim under Section 163A of the Act was made only against the owner and insurance company of the vehicle which was being driven by the deceased himself as borrower of the vehicle from the owner of the vehicle and he would be in the shoes of the owner, the High Court has rightly observed and held that such a claim was not maintainable and the claimants ought to have joined and/or ought to have made the claim under Section 163A of the Act against the driver, owner and/or the insurance company of the offending vehicle i.e. RJ 29 2M 9223 being a third party to the said vehicle5.7 Now, so far as the reliance placed upon by the learned Advocate for the claimants on the decision of this Court in the case of Naveen Kumar (supra), on considering the issue involved in that decision, we are of the opinion that the said decision shall not be applicable to the facts of the case on hand and/or the same shall not be of any assistance to the claimants. In that case, the issue was as to who could be said to be the registered owner of the vehicle and the liability of the owner who sold the vehicle, but his name continued to be as the owner with the registering authority. To that, it was held that the person in whose name the motor vehicle stands registered is the owner of the vehicle for the purpose of the Act5.8 However, at the same time, even as per the contract of insurance, in case of personal accident the owner¬driver is entitled to a sum of Rs.1 lakh. Therefore, the deceased, as observed hereinabove, who would be in the shoes of the owner shall be entitled to a sum of Rs.1 lakh, even as per the contract of insurance. However, it is the case on behalf of the original claimants that there is an amendment to the 2 nd Schedule and a fixed amount of Rs.5 lakh has been specified in case of death and therefore the claimants shall be entitled to Rs.5 lakh. The same cannot be accepted. In the present case, the accident took place in the year 2006 and even the Judgment and Award was passed by the learned Tribunal in the year 2009, and the impugned Judgment and Order has been passed by the High Court in 10.05.2018, i.e. much prior to the amendment in the 2 nd Schedule. In the facts and circumstance of the present case, the claimants shall not be entitled to the benefit of the amendment to the 2 nd Schedule. At the same time, as observed hereinabove, the claimants shall be entitled to Rs.1 lakh as per the terms of the contract of insurance, the driver being in the shoes of the owner of the vehicle5.9 Now, so far as the submission made on behalf of the claimants that in a claim under Section 163A of the Act mere use of the vehicle is enough and despite the compensation claimed by the heirs of the owner of the motorcycle which was involved in the accident resulting in his death, the claim under Section 163A of the Act would be maintainable is concerned, in view of the decision of this Court in Rajni Devi (supra), the aforesaid cannot be accepted. In Rajni Devi (supra), it has been specifically observed and held that the provisions of Section 163A of the Act cannot be said to have any application with regard to an accident wherein the owner of the motor vehicle himself is involved. After considering the decisions of this Court in the cases of Oriental Insurance Co. Ltd. V. Jhuma Saha (2007) 9 SCC 263 ; Dhanraj (supra); National Insurance Co. Ltd. V. Laxmi Narain Dhut (2007) 3 SCC 700 and Premkumari v. Prahlad Dev (2008) 3 SCC 193 , it is ultimately concluded by this Court that the liability under Section 163A of the Act is on the owner of the vehicle as a person cannot be both, a claimant as also a recipient and, therefore, the heirs of the owner could not have maintained the claim in terms of Section 163A of the Act. It is further observed that, for the said purpose, only the terms of the contract of insurance could be taken recourse to. In the recent decision of this Court in the case of Ashalata Bhowmik (supra), it is specifically held by this Court that the parties shall be governed by the terms and conditions of the contract of insurance. Therefore, as per the contract of insurance, the insurance company shall be liable to pay the compensation to a third party and not to the owner, except to the extent of Rs.1 lakh as observed hereinabove. | 1 | 5,631 | 1,825 | ### 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:
present case, the parties are governed by the contract of insurance and under the contract of insurance the liability of the insurance company would be qua third party only. In the present case, as observed hereinabove, the deceased cannot be said to be a third party with respect to the insured vehicle bearing registration No. RJ 02 SA 7811. There cannot be any dispute that the liability of the insurance company would be as per the terms and conditions of the contract of insurance. As held by this Court in the case of Dhanraj (supra), an insurance policy covers the liability incurred by the insured in respect of death of or bodily injury to any person (including an owner of the goods or his authorized representative) carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle. In the said decision, it is further held by this Court that Section 147 does not require an insurance company to assume risk for death or bodily injury to the owner of the vehicle. 5.6 In view of the above and for the reasons stated above, in the present case, as the claim under Section 163A of the Act was made only against the owner and insurance company of the vehicle which was being driven by the deceased himself as borrower of the vehicle from the owner of the vehicle and he would be in the shoes of the owner, the High Court has rightly observed and held that such a claim was not maintainable and the claimants ought to have joined and/or ought to have made the claim under Section 163A of the Act against the driver, owner and/or the insurance company of the offending vehicle i.e. RJ 29 2M 9223 being a third party to the said vehicle. 5.7 Now, so far as the reliance placed upon by the learned Advocate for the claimants on the decision of this Court in the case of Naveen Kumar (supra), on considering the issue involved in that decision, we are of the opinion that the said decision shall not be applicable to the facts of the case on hand and/or the same shall not be of any assistance to the claimants. In that case, the issue was as to who could be said to be the registered owner of the vehicle and the liability of the owner who sold the vehicle, but his name continued to be as the owner with the registering authority. To that, it was held that the person in whose name the motor vehicle stands registered is the owner of the vehicle for the purpose of the Act. 5.8 However, at the same time, even as per the contract of insurance, in case of personal accident the owner¬driver is entitled to a sum of Rs.1 lakh. Therefore, the deceased, as observed hereinabove, who would be in the shoes of the owner shall be entitled to a sum of Rs.1 lakh, even as per the contract of insurance. However, it is the case on behalf of the original claimants that there is an amendment to the 2 nd Schedule and a fixed amount of Rs.5 lakh has been specified in case of death and therefore the claimants shall be entitled to Rs.5 lakh. The same cannot be accepted. In the present case, the accident took place in the year 2006 and even the Judgment and Award was passed by the learned Tribunal in the year 2009, and the impugned Judgment and Order has been passed by the High Court in 10.05.2018, i.e. much prior to the amendment in the 2 nd Schedule. In the facts and circumstance of the present case, the claimants shall not be entitled to the benefit of the amendment to the 2 nd Schedule. At the same time, as observed hereinabove, the claimants shall be entitled to Rs.1 lakh as per the terms of the contract of insurance, the driver being in the shoes of the owner of the vehicle. 5.9 Now, so far as the submission made on behalf of the claimants that in a claim under Section 163A of the Act mere use of the vehicle is enough and despite the compensation claimed by the heirs of the owner of the motorcycle which was involved in the accident resulting in his death, the claim under Section 163A of the Act would be maintainable is concerned, in view of the decision of this Court in Rajni Devi (supra), the aforesaid cannot be accepted. In Rajni Devi (supra), it has been specifically observed and held that the provisions of Section 163A of the Act cannot be said to have any application with regard to an accident wherein the owner of the motor vehicle himself is involved. After considering the decisions of this Court in the cases of Oriental Insurance Co. Ltd. V. Jhuma Saha (2007) 9 SCC 263 ; Dhanraj (supra); National Insurance Co. Ltd. V. Laxmi Narain Dhut (2007) 3 SCC 700 and Premkumari v. Prahlad Dev (2008) 3 SCC 193 , it is ultimately concluded by this Court that the liability under Section 163A of the Act is on the owner of the vehicle as a person cannot be both, a claimant as also a recipient and, therefore, the heirs of the owner could not have maintained the claim in terms of Section 163A of the Act. It is further observed that, for the said purpose, only the terms of the contract of insurance could be taken recourse to. In the recent decision of this Court in the case of Ashalata Bhowmik (supra), it is specifically held by this Court that the parties shall be governed by the terms and conditions of the contract of insurance. Therefore, as per the contract of insurance, the insurance company shall be liable to pay the compensation to a third party and not to the owner, except to the extent of Rs.1 lakh as observed hereinabove.
### Response:
1
### Explanation:
case, the parties are governed by the contract of insurance and under the contract of insurance the liability of the insurance company would be qua third party only. In the present case, as observed hereinabove, the deceased cannot be said to be a third party with respect to the insured vehicle bearing registration No. RJ 02 SA 7811. There cannot be any dispute that the liability of the insurance company would be as per the terms and conditions of the contract of insurance. As held by this Court in the case of Dhanraj (supra), an insurance policy covers the liability incurred by the insured in respect of death of or bodily injury to any person (including an owner of the goods or his authorized representative) carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle. In the said decision, it is further held by this Court that Section 147 does not require an insurance company to assume risk for death or bodily injury to the owner of the vehicle5.6 In view of the above and for the reasons stated above, in the present case, as the claim under Section 163A of the Act was made only against the owner and insurance company of the vehicle which was being driven by the deceased himself as borrower of the vehicle from the owner of the vehicle and he would be in the shoes of the owner, the High Court has rightly observed and held that such a claim was not maintainable and the claimants ought to have joined and/or ought to have made the claim under Section 163A of the Act against the driver, owner and/or the insurance company of the offending vehicle i.e. RJ 29 2M 9223 being a third party to the said vehicle5.7 Now, so far as the reliance placed upon by the learned Advocate for the claimants on the decision of this Court in the case of Naveen Kumar (supra), on considering the issue involved in that decision, we are of the opinion that the said decision shall not be applicable to the facts of the case on hand and/or the same shall not be of any assistance to the claimants. In that case, the issue was as to who could be said to be the registered owner of the vehicle and the liability of the owner who sold the vehicle, but his name continued to be as the owner with the registering authority. To that, it was held that the person in whose name the motor vehicle stands registered is the owner of the vehicle for the purpose of the Act5.8 However, at the same time, even as per the contract of insurance, in case of personal accident the owner¬driver is entitled to a sum of Rs.1 lakh. Therefore, the deceased, as observed hereinabove, who would be in the shoes of the owner shall be entitled to a sum of Rs.1 lakh, even as per the contract of insurance. However, it is the case on behalf of the original claimants that there is an amendment to the 2 nd Schedule and a fixed amount of Rs.5 lakh has been specified in case of death and therefore the claimants shall be entitled to Rs.5 lakh. The same cannot be accepted. In the present case, the accident took place in the year 2006 and even the Judgment and Award was passed by the learned Tribunal in the year 2009, and the impugned Judgment and Order has been passed by the High Court in 10.05.2018, i.e. much prior to the amendment in the 2 nd Schedule. In the facts and circumstance of the present case, the claimants shall not be entitled to the benefit of the amendment to the 2 nd Schedule. At the same time, as observed hereinabove, the claimants shall be entitled to Rs.1 lakh as per the terms of the contract of insurance, the driver being in the shoes of the owner of the vehicle5.9 Now, so far as the submission made on behalf of the claimants that in a claim under Section 163A of the Act mere use of the vehicle is enough and despite the compensation claimed by the heirs of the owner of the motorcycle which was involved in the accident resulting in his death, the claim under Section 163A of the Act would be maintainable is concerned, in view of the decision of this Court in Rajni Devi (supra), the aforesaid cannot be accepted. In Rajni Devi (supra), it has been specifically observed and held that the provisions of Section 163A of the Act cannot be said to have any application with regard to an accident wherein the owner of the motor vehicle himself is involved. After considering the decisions of this Court in the cases of Oriental Insurance Co. Ltd. V. Jhuma Saha (2007) 9 SCC 263 ; Dhanraj (supra); National Insurance Co. Ltd. V. Laxmi Narain Dhut (2007) 3 SCC 700 and Premkumari v. Prahlad Dev (2008) 3 SCC 193 , it is ultimately concluded by this Court that the liability under Section 163A of the Act is on the owner of the vehicle as a person cannot be both, a claimant as also a recipient and, therefore, the heirs of the owner could not have maintained the claim in terms of Section 163A of the Act. It is further observed that, for the said purpose, only the terms of the contract of insurance could be taken recourse to. In the recent decision of this Court in the case of Ashalata Bhowmik (supra), it is specifically held by this Court that the parties shall be governed by the terms and conditions of the contract of insurance. Therefore, as per the contract of insurance, the insurance company shall be liable to pay the compensation to a third party and not to the owner, except to the extent of Rs.1 lakh as observed hereinabove.
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Commissioner of Wealth Tax, Andhra Pradesh Vs. Officer-In-Charge (Court of Wards), Paigah | shall be lawful for the Taluqdar, and in case a taluka is under settlement, for the Commissioner of Survey Settlement or Commissioner of Land Records after giving a hearing to the landholder to prohibit its appropriation for any particular purpose and record reasons therefor and to summarily evict the holder who may have appropriated the said land to prohibited purpose."12. Provisions of the Andhra Pradesh Land Revenue Act seem to involve quasi-judicial proceedings, or at least, an enquiry into the purposes for which land to be assessed has been appropriated. The Full Bench of the Andhra Pradesh High Court has held these entries to be "strong prima facie evidence", and it practically decided the case on the basis of these entries. But the difficulty seems to us to be that the taxing authorities had given a categorical finding that the land under consideration had neither been used for an agricultural purpose nor was it ever intended to be so used. It may be that this finding was based on no evidence or was based on the circumstance that the land appeared to have been kept, as the environs of a huge palace, unused for any agricultural purpose. It may be that the past history of such lands could give rise to some guess work that no agricultural user was intended by the owners of the Begumpet Palace. But, is it possible to reach a categorical finding or conclusion on the basis of general notions, based on past history of the way in which such lands were treated by their aristocratic owners ? At any rate, there presumably was some, possibly quasi-judicial, enquiry at the time of classification of land as "agricultural" under the provisions of section 50 of the Andhra Pradesh Land Revenue Act. There must have been some evidence given for such a classification.Learned counsel for the assessee-respondents submitted that no evidence had been led on the question of intended user before the taxing authorities as the "prima facie evidence", provided by the entries in the revenue records, was considered enough. It has, however, to be remembered that such entries could raise only a rebuttable presumption. It could, therefore, be contended that some evidence should have been led before the taxing authorities of the purpose or intended user of the land under consideration before the presumption could be rebutted. If the "prima facie" evidence of the entries was enough for the assessee to discharge his burden to establish an exemption, as it seemed to be, evidence to rebut it should have been led on behalf of the department.13. We think that this aspect of the question was not examined by the Full Bench from a correct angle. Although it seems to have based its conclusion primarily on the "prima facie" evidence provided by the entries under section 50 of the Andhra Pradesh Land Revenue Act, it had also used other indicia which were really not very helpful. They had a bearing on potentialities for agricultural user. The Full Bench had, however, not recorded a finding that the conclusion reached by the taxing authorities, that the land was never even intended to be used for an agricultural purpose, rested on no evidence at all. It had not given its reasons for rejecting this finding of the Tribunal.14. We also think that the Full Bench was not correct in adopting the view expressed in Sarojini Devis case by the Madras High Court where it was held that it was enough to show that the land under consideration was capable of being used for agricultural purposes. This erroneous view also seems to us to have affected the conclusion of the Full Bench on what was essentially a question of fact. It had led the Full Bench into giving excessive weight to considerations which had a bearing only on potentialities of the land for use for agricultural purposes.For the reasons already given, we do not think that the term "agricultural land" had such a wide scope as the Full Bench appears to have given it for the purposes of the Act we have before us. We agree that the determination of the character of land, according to the purpose for which it is meant or set apart and can be used, is a matter which ought to be determined on the facts of each particular case. What is really required to be shown is the connection with an agricultural purpose and user and not the mere possibility of user of land, by some possible future owner or possessor, for an agricultural purpose. It is not the mere potentiality, which will only affect its valuation as part of "assets", but its actual condition and intended user which has to be seen for purposes of exemption from wealth-tax. One of the objects of the exemption seemed to be to encourage cultivation or actual utilisation of land for agricultural purposes. If there is neither anything in its condition, nor anything in evidence to indicate the intention of its owners or possessors, so as to connect it with an agricultural purpose, the land could not be "agricultural land" for the purposes of earning an exemption under the Act. Entries in revenue records are, however, good prima facie evidence. We do not think that all these considerations were kept in view by the taxing authorities in deciding the question of fact which was really for the assessing authorities to determine having regard to all the relevant evidence and the law laid down by this court. The High Court should have sent back the case to the assessing authorities for deciding the question of fact after stating the law correctly.15. We think that this is a fit case in which we should set aside the judgment of the Full Bench of the High Court had hold that the Tribunal should determine afresh, from a correct angle, the question of fact whether any of the lands under consideration were "agricultural" or not for the purposes of the Act before it. | 1[ds]In the case before us, the question is a connected one. Here also the term "agricultural land" has not been defined. That, however, does not mean that the land to be considered can be divorced from its actual or natural or ordinary user. If all land, which is capable of being used for agriculture, could be intended to be excluded from "assets", practically every type of land, including that covered by buildings, would fall within that class. Hence, it seems to us to be impossible to adopt so wide a test as would obviously defeat the purpose of the exemption given. Apparently, agricultural land is excluded from the definition of "assets" as it was thought that parliament was not competent to impose taxes which will fall on agricultural land. What ever may be the reason for the exemption, we think that the exemption is connected with the user of land for a purpose which must be agricultural. It is an enactment to tax "wealth" which includes all that is ordinarily understood as "assets". The person claiming an exemption of any property of his from the scope of his asset must satisfy the conditions of the exemption.It is true that in Raja Benoy Kumar Sahas Roys case this court pointed out that meanings of words used in Acts of Parliament are not necessarily to be gathered from dictionaries which are not authorities on what Parliament must have meant. Nevertheless, it was also indicated there that where there is nothing better to rely upon, dictionaries may be used as an aid to resolve an ambiguity. The ordinary dictionary meaning cannot be discarded simply because it is given in a dictionary. To do that would be to destroy the literal rule of interpretation. This is a basic rule relying upon the ordinary dictionary meaning which, in the absence of some overriding or special reasons to justify a departure, must prevail. Moreover, it was held there that the dictionary meanings of the word "agricultural" were wider than what was meant by agricultural income as that term was used in the Income-tax Act. Even if we could give a wider connotation to the term "agricultural" than the one it carries with it in the Income-tax Act, we cannot dispense with credible evidence of at least appropriation or setting a part of the land for a purpose which could be regarded as agricultural and for which the land under consideration could be reasonably used without an alteration of its character. This, we think, is the minimal test of "agricultural land" which should be applied in suchthink that it is not correct to give as wide a meaning as possible to terms used in a statute simply because the statute does not define an expression. The correct rule is that we have to endeavour to find out the exact sense in which the words have been used in a particular context. We are entitled to look at the statute as a whole and give an interpretation in consonance with the purposes of the statute and what logically follows from the terms used. We are to avoid absurd results. If we were to give the widest possible connotation to the words "agricultural land", as the Full Bench of the Andhra Pradesh High Court seemed inclined to give to the term "agricultural land", we would reach the conclusion that practically, all land, even that covered by buildings, is "agricultural land" inasmuch as its potential or possible use could be agricultural. The object of the Wealth-tax Act is to tax surplus wealth. It is clear that all land is not excluded from the definition of assets. It is only "agricultural land" which could be exempted. Therefore, it is imperative to give reasonable limits to the scope of the "agricultural land", or, in other words, this exemption had to be necessarily given a more restricted meaning than the very wide ambit given to it by the Full Bench of the Andhra Pradesh High Court.The Full Bench itself saw the need for some kind of limitation to the application of "widest purpose" principle, if one may call it that. Therefore, evidently in an attempt to avoid the unreasonable conclusion to which too wide a definition of "agricultural land" would naturally lead to, the Full Bench, in the fourth conclusion recorded by it, held that, if some vacant land is actually built upon, it changes its physical characteristics and becomes unfit for immediate cultivation. It thus qualified its view that the widest possible meaning must be given to "land". Its final view was that only such land could cease to be agricultural land as had actually become unfit for immediate use for an agricultural purpose. This view seems to imply that one has to start with the presumption that all "land" as such is "agricultural land". If one were to start with such a presumption (although, we must, in fairness to the views actually expressed by the Full Bench, observe that it did not expressly say so), even desert land will have to be first presumed to be agricultural land. We feel certain that the Full Bench did not mean to carry the application of assumptions or principles, which seem to follow from its reasoning, so far asNos. 6, 7 and 8 are only negative in character. They merely indicated what could not be conclusive in deciding whether the land was agricultural. Conclusions Nos. 6 to 8, as stated above, would seem to be correct. But, in our opinion, they do not carry us far in formulating a test of what is agricultural land. Conclusion No. 5 seems to have been the real or positive test, based on entries in revenue records, actually adopted by the Full Bench for determining the nature of theshall be lawful for the Taluqdar, and in case a taluka is under settlement, for the Commissioner of Survey Settlement or Commissioner of Land Records after giving a hearing to the landholder to prohibit its appropriation for any particular purpose and record reasons therefor and to summarily evict the holder who may have appropriated the said land to prohibitedof the Andhra Pradesh Land Revenue Act seem to involve quasi-judicial proceedings, or at least, an enquiry into the purposes for which land to be assessed has been appropriated. The Full Bench of the Andhra Pradesh High Court has held these entries to be "strong prima facie evidence", and it practically decided the case on the basis of these entries. But the difficulty seems to us to be that the taxing authorities had given a categorical finding that the land under consideration had neither been used for an agricultural purpose nor was it ever intended to be so used. It may be that this finding was based on no evidence or was based on the circumstance that the land appeared to have been kept, as the environs of a huge palace, unused for any agricultural purpose. It may be that the past history of such lands could give rise to some guess work that no agricultural user was intended by the owners of the Begumpet Palace. But, is it possible to reach a categorical finding or conclusion on the basis of general notions, based on past history of the way in which such lands were treated by their aristocratic owners ? At any rate, there presumably was some, possibly quasi-judicial, enquiry at the time of classification of land as "agricultural" under the provisions of section 50 of the Andhra Pradesh Land Revenue Act. There must have been some evidence given for such a classification.Learned counsel for the assessee-respondents submitted that no evidence had been led on the question of intended user before the taxing authorities as the "prima facie evidence", provided by the entries in the revenue records, was considered enough. It has, however, to be remembered that such entries could raise only a rebuttable presumption. It could, therefore, be contended that some evidence should have been led before the taxing authorities of the purpose or intended user of the land under consideration before the presumption could be rebutted. If the "prima facie" evidence of the entries was enough for the assessee to discharge his burden to establish an exemption, as it seemed to be, evidence to rebut it should have been led on behalf of thethink that this aspect of the question was not examined by the Full Bench from a correct angle. Although it seems to have based its conclusion primarily on the "prima facie" evidence provided by the entries under section 50 of the Andhra Pradesh Land Revenue Act, it had also used other indicia which were really not very helpful. They had a bearing on potentialities for agricultural user. The Full Bench had, however, not recorded a finding that the conclusion reached by the taxing authorities, that the land was never even intended to be used for an agricultural purpose, rested on no evidence at all. It had not given its reasons for rejecting this finding of thealso think that the Full Bench was not correct in adopting the view expressed in Sarojini Devis case by the Madras High Court where it was held that it was enough to show that the land under consideration was capable of being used for agricultural purposes. This erroneous view also seems to us to have affected the conclusion of the Full Bench on what was essentially a question of fact. It had led the Full Bench into giving excessive weight to considerations which had a bearing only on potentialities of the land for use for agricultural purposes.For the reasons already given, we do not think that the term "agricultural land" had such a wide scope as the Full Bench appears to have given it for the purposes of the Act we have before us. We agree that the determination of the character of land, according to the purpose for which it is meant or set apart and can be used, is a matter which ought to be determined on the facts of each particular case. What is really required to be shown is the connection with an agricultural purpose and user and not the mere possibility of user of land, by some possible future owner or possessor, for an agricultural purpose. It is not the mere potentiality, which will only affect its valuation as part of "assets", but its actual condition and intended user which has to be seen for purposes of exemption from wealth-tax. One of the objects of the exemption seemed to be to encourage cultivation or actual utilisation of land for agricultural purposes. If there is neither anything in its condition, nor anything in evidence to indicate the intention of its owners or possessors, so as to connect it with an agricultural purpose, the land could not be "agricultural land" for the purposes of earning an exemption under the Act. Entries in revenue records are, however, good prima facie evidence. We do not think that all these considerations were kept in view by the taxing authorities in deciding the question of fact which was really for the assessing authorities to determine having regard to all the relevant evidence and the law laid down by this court. The High Court should have sent back the case to the assessing authorities for deciding the question of fact after stating the lawthink that this is a fit case in which we should set aside the judgment of the Full Bench of the High Court had hold that the Tribunal should determine afresh, from a correct angle, the question of fact whether any of the lands under consideration were "agricultural" or not for the purposes of the Act before it. | 1 | 4,998 | 2,157 | ### Instruction:
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shall be lawful for the Taluqdar, and in case a taluka is under settlement, for the Commissioner of Survey Settlement or Commissioner of Land Records after giving a hearing to the landholder to prohibit its appropriation for any particular purpose and record reasons therefor and to summarily evict the holder who may have appropriated the said land to prohibited purpose."12. Provisions of the Andhra Pradesh Land Revenue Act seem to involve quasi-judicial proceedings, or at least, an enquiry into the purposes for which land to be assessed has been appropriated. The Full Bench of the Andhra Pradesh High Court has held these entries to be "strong prima facie evidence", and it practically decided the case on the basis of these entries. But the difficulty seems to us to be that the taxing authorities had given a categorical finding that the land under consideration had neither been used for an agricultural purpose nor was it ever intended to be so used. It may be that this finding was based on no evidence or was based on the circumstance that the land appeared to have been kept, as the environs of a huge palace, unused for any agricultural purpose. It may be that the past history of such lands could give rise to some guess work that no agricultural user was intended by the owners of the Begumpet Palace. But, is it possible to reach a categorical finding or conclusion on the basis of general notions, based on past history of the way in which such lands were treated by their aristocratic owners ? At any rate, there presumably was some, possibly quasi-judicial, enquiry at the time of classification of land as "agricultural" under the provisions of section 50 of the Andhra Pradesh Land Revenue Act. There must have been some evidence given for such a classification.Learned counsel for the assessee-respondents submitted that no evidence had been led on the question of intended user before the taxing authorities as the "prima facie evidence", provided by the entries in the revenue records, was considered enough. It has, however, to be remembered that such entries could raise only a rebuttable presumption. It could, therefore, be contended that some evidence should have been led before the taxing authorities of the purpose or intended user of the land under consideration before the presumption could be rebutted. If the "prima facie" evidence of the entries was enough for the assessee to discharge his burden to establish an exemption, as it seemed to be, evidence to rebut it should have been led on behalf of the department.13. We think that this aspect of the question was not examined by the Full Bench from a correct angle. Although it seems to have based its conclusion primarily on the "prima facie" evidence provided by the entries under section 50 of the Andhra Pradesh Land Revenue Act, it had also used other indicia which were really not very helpful. They had a bearing on potentialities for agricultural user. The Full Bench had, however, not recorded a finding that the conclusion reached by the taxing authorities, that the land was never even intended to be used for an agricultural purpose, rested on no evidence at all. It had not given its reasons for rejecting this finding of the Tribunal.14. We also think that the Full Bench was not correct in adopting the view expressed in Sarojini Devis case by the Madras High Court where it was held that it was enough to show that the land under consideration was capable of being used for agricultural purposes. This erroneous view also seems to us to have affected the conclusion of the Full Bench on what was essentially a question of fact. It had led the Full Bench into giving excessive weight to considerations which had a bearing only on potentialities of the land for use for agricultural purposes.For the reasons already given, we do not think that the term "agricultural land" had such a wide scope as the Full Bench appears to have given it for the purposes of the Act we have before us. We agree that the determination of the character of land, according to the purpose for which it is meant or set apart and can be used, is a matter which ought to be determined on the facts of each particular case. What is really required to be shown is the connection with an agricultural purpose and user and not the mere possibility of user of land, by some possible future owner or possessor, for an agricultural purpose. It is not the mere potentiality, which will only affect its valuation as part of "assets", but its actual condition and intended user which has to be seen for purposes of exemption from wealth-tax. One of the objects of the exemption seemed to be to encourage cultivation or actual utilisation of land for agricultural purposes. If there is neither anything in its condition, nor anything in evidence to indicate the intention of its owners or possessors, so as to connect it with an agricultural purpose, the land could not be "agricultural land" for the purposes of earning an exemption under the Act. Entries in revenue records are, however, good prima facie evidence. We do not think that all these considerations were kept in view by the taxing authorities in deciding the question of fact which was really for the assessing authorities to determine having regard to all the relevant evidence and the law laid down by this court. The High Court should have sent back the case to the assessing authorities for deciding the question of fact after stating the law correctly.15. We think that this is a fit case in which we should set aside the judgment of the Full Bench of the High Court had hold that the Tribunal should determine afresh, from a correct angle, the question of fact whether any of the lands under consideration were "agricultural" or not for the purposes of the Act before it.
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records, actually adopted by the Full Bench for determining the nature of theshall be lawful for the Taluqdar, and in case a taluka is under settlement, for the Commissioner of Survey Settlement or Commissioner of Land Records after giving a hearing to the landholder to prohibit its appropriation for any particular purpose and record reasons therefor and to summarily evict the holder who may have appropriated the said land to prohibitedof the Andhra Pradesh Land Revenue Act seem to involve quasi-judicial proceedings, or at least, an enquiry into the purposes for which land to be assessed has been appropriated. The Full Bench of the Andhra Pradesh High Court has held these entries to be "strong prima facie evidence", and it practically decided the case on the basis of these entries. But the difficulty seems to us to be that the taxing authorities had given a categorical finding that the land under consideration had neither been used for an agricultural purpose nor was it ever intended to be so used. It may be that this finding was based on no evidence or was based on the circumstance that the land appeared to have been kept, as the environs of a huge palace, unused for any agricultural purpose. It may be that the past history of such lands could give rise to some guess work that no agricultural user was intended by the owners of the Begumpet Palace. But, is it possible to reach a categorical finding or conclusion on the basis of general notions, based on past history of the way in which such lands were treated by their aristocratic owners ? At any rate, there presumably was some, possibly quasi-judicial, enquiry at the time of classification of land as "agricultural" under the provisions of section 50 of the Andhra Pradesh Land Revenue Act. There must have been some evidence given for such a classification.Learned counsel for the assessee-respondents submitted that no evidence had been led on the question of intended user before the taxing authorities as the "prima facie evidence", provided by the entries in the revenue records, was considered enough. It has, however, to be remembered that such entries could raise only a rebuttable presumption. It could, therefore, be contended that some evidence should have been led before the taxing authorities of the purpose or intended user of the land under consideration before the presumption could be rebutted. If the "prima facie" evidence of the entries was enough for the assessee to discharge his burden to establish an exemption, as it seemed to be, evidence to rebut it should have been led on behalf of thethink that this aspect of the question was not examined by the Full Bench from a correct angle. Although it seems to have based its conclusion primarily on the "prima facie" evidence provided by the entries under section 50 of the Andhra Pradesh Land Revenue Act, it had also used other indicia which were really not very helpful. They had a bearing on potentialities for agricultural user. The Full Bench had, however, not recorded a finding that the conclusion reached by the taxing authorities, that the land was never even intended to be used for an agricultural purpose, rested on no evidence at all. It had not given its reasons for rejecting this finding of thealso think that the Full Bench was not correct in adopting the view expressed in Sarojini Devis case by the Madras High Court where it was held that it was enough to show that the land under consideration was capable of being used for agricultural purposes. This erroneous view also seems to us to have affected the conclusion of the Full Bench on what was essentially a question of fact. It had led the Full Bench into giving excessive weight to considerations which had a bearing only on potentialities of the land for use for agricultural purposes.For the reasons already given, we do not think that the term "agricultural land" had such a wide scope as the Full Bench appears to have given it for the purposes of the Act we have before us. We agree that the determination of the character of land, according to the purpose for which it is meant or set apart and can be used, is a matter which ought to be determined on the facts of each particular case. What is really required to be shown is the connection with an agricultural purpose and user and not the mere possibility of user of land, by some possible future owner or possessor, for an agricultural purpose. It is not the mere potentiality, which will only affect its valuation as part of "assets", but its actual condition and intended user which has to be seen for purposes of exemption from wealth-tax. One of the objects of the exemption seemed to be to encourage cultivation or actual utilisation of land for agricultural purposes. If there is neither anything in its condition, nor anything in evidence to indicate the intention of its owners or possessors, so as to connect it with an agricultural purpose, the land could not be "agricultural land" for the purposes of earning an exemption under the Act. Entries in revenue records are, however, good prima facie evidence. We do not think that all these considerations were kept in view by the taxing authorities in deciding the question of fact which was really for the assessing authorities to determine having regard to all the relevant evidence and the law laid down by this court. The High Court should have sent back the case to the assessing authorities for deciding the question of fact after stating the lawthink that this is a fit case in which we should set aside the judgment of the Full Bench of the High Court had hold that the Tribunal should determine afresh, from a correct angle, the question of fact whether any of the lands under consideration were "agricultural" or not for the purposes of the Act before it.
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Sita Ram Sugar Mills Ltd. & Another Vs. Their Workmen | Veda Vyasa contends that this finding is erroneous.3. The construction of the clause itself presents no difficulty. What has given rise to the controversy, however, in the question as to whether the head office employees are in fact and in law employed by the appellant In dealing with this question the tribunal had naturally to consider the evidence adduced by the parties and it is in the light of the said evidence that the tribunal has ultimately reached the conclusion that the head office staff at Calcutta are not the employees of the appellant Sri Sitaram Sugar Mills Co. Ltd. This is a question of fact and normally we would be reluctant to interfere with the finding of the tribunal on such a question of fact. The conclusion drawn by the tribunal rests on the appreciation of evidence and no question of law is involved in the process of reaching that conclusion. However, since the matter has been elaborately argued before us we propose to indicate briefly what the evidence is and what inference legitimately follows from it.4. It is common ground that M/s. Karam Chand Thapar and Bros. Private Ltd., who were the Managing Agents of the appellant during the relevant period were during the same period Managing Agents of two other sugar mills, viz., Deoria Suguar Mills Ltd., U. P. and Mohini sugar Mills Ltd., Bihar. Besides they were the Secretaries and Treasurers of the Siwan Sugar Mills, Bihar. Mr. Verma, who is the Assistant Chief Accountant of the appellant, filed earning sheets of the establishment at the appellants head office at Calcutta for the season 1953-1954; and he stated that the employees in question were the appellants employees and not those of the Managing Agents. He, however, admitted that the said employees were working for the other concerns in which the Managing Agents were interested and their salaries contributed by the appellant along with the said other concerns. Mr. Thaper, Manager of the appellant, who also gave evidence referred to the several activities of the appellant and stated that the personnel whether posted at the mills or at the head office at Calcutta which is the Registered Office of the Appellant are employees of the appellant. He, however, admitted that the employees at the head office are not on the roll of the factory at Betalpur and we are concerned with the dispute raised by the workmen at Betalpur. From this evidence the tribunal has found that the employees in question worked for all the four sugar factories with which the Managing Agents of the appellant are connected and that their salaries are contributed by the said four sugar factories. It has also observed that for several years past the employees who work in the factories have been protesting, and successfully, against the payment of any share of the bonus to the employees at the head office. The Tribunal has then commented on the fact that the contract of the Managing Agency executed in favour of the Managing Agents by the appellant had not been produced; and it thought that in substance the employees were the employees of the Managing Agents at whose instance the respective concerns with which they were concerned were bearing the salary bill in regard to them. The only evidence which has been produced by the appellant is the earning sheets and that shows no more than the quota of the salaries paid by the appellant to the respective employees. If, on these facts, the tribunal came to the conclusion that the appellant had not shown that the employees in question were its employees, we do not see why we should interfere with it.5. It would have been very easy for the appellant to produce the letters of appointment given to the employees at the head office. The appellant might also have conveniently produced the roll of the employees engaged by its Managing Agents. It is true that Mr. Vyasa contended that the onus was on the respondent to show that the share of the bonus had been wrongfully paid to the employees at the head office. In our opinion, it would be unreasonable to rely on technical or academic considerations of onus in such matters. Besides, it is obvious that the relevant facts are within the knowledge of the appellant and cannot possibly be known to the respondents. Mr. Veda Vyasa also suggested that the respondents could have called upon by the appellant to produce the relevant documents. That again is a technical plea the importance of which cannot be exaggerated in industrial proceedings. The appellant knew that its workmen in the factories had been consistently raising an objection against the payment of any bonus to the head office staff. In such a case it was clearly the duty of the appellant to produce all the material evidence within its possession. That being so we do not think that the appellant can successfully challenge the finding of fact recorded by the tribunal that the persons in question are not employed in or under the appellants concern6. The tribunal has also found that the Government Order in question applied to U. P. only and so the head office staff cannot claim a share in the bonus. According to the tribunal it is only the employees of the factory who are entitled to the bonus under the agreement embodied in the Government Notification, and that again is another ground on which the head office staff must be excluded. In view of the fact that we see no reason to interfere with the first finding of the tribunal we do not propose to consider the other findings made by it. Before we part with this appeal we ought to make it clear that though the validity of the Government Order was challenged by the appellant before the tribunal, at the hearing of the appeal in this Court Mr. Veda Vyasa expressly stated that he did not want to raise that point in the present appeal. | 0[ds]Mr. Thaper, Manager of the appellant, who also gave evidence referred to the several activities of the appellant and stated that the personnel whether posted at the mills or at the head office at Calcutta which is the Registered Office of the Appellant are employees of the appellant. He, however, admitted that the employees at the head office are not on the roll of the factory at Betalpur and we are concerned with the dispute raised by the workmen at Betalpur. From this evidence the tribunal has found that the employees in question worked for all the four sugar factories with which the Managing Agents of the appellant are connected and that their salaries are contributed by the said four sugar factories. It has also observed that for several years past the employees who work in the factories have been protesting, and successfully, against the payment of any share of the bonus to the employees at the head office. The Tribunal has then commented on the fact that the contract of the Managing Agency executed in favour of the Managing Agents by the appellant had not been produced; and it thought that in substance the employees were the employees of the Managing Agents at whose instance the respective concerns with which they were concerned were bearing the salary bill in regard to them. The only evidence which has been produced by the appellant is the earning sheets and that shows no more than the quota of the salaries paid by the appellant to the respective employees. If, on these facts, the tribunal came to the conclusion that the appellant had not shown that the employees in question were its employees, we do not see why we should interfere with it.5. It would have been very easy for the appellant to produce the letters of appointment given to the employees at the head office. The appellant might also have conveniently produced the roll of the employees engaged by its Managing Agents. It is true that Mr. Vyasa contended that the onus was on the respondent to show that the share of the bonus had been wrongfully paid to the employees at the head office. In our opinion, it would be unreasonable to rely on technical or academic considerations of onus in such matters. Besides, it is obvious that the relevant facts are within the knowledge of the appellant and cannot possibly be known to the respondents.Mr. Veda Vyasa also suggested that the respondents could have called upon by the appellant to produce the relevant documents.That again is a technical plea the importance of which cannot be exaggerated in industrial proceedings. The appellant knew that its workmen in the factories had been consistently raising an objection against the payment of any bonus to the head office staff. In such a case it was clearly the duty of the appellant to produce all the material evidence within its possession. That being so we do not think that the appellant can successfully challenge the finding of fact recorded by the tribunal that the persons in question are not employed in or under the appellants concern6. The tribunal has also found that the Government Order in question applied to U. P. only and so the head office staff cannot claim a share in the bonus. According to the tribunal it is only the employees of the factory who are entitled to the bonus under the agreement embodied in the Government Notification, and that again is another ground on which the head office staff must be excluded. In view of the fact that we see no reason to interfere with the first finding of the tribunal we do not propose to consider the other findings made by it. Before we part with this appeal we ought to make it clear that though the validity of the Government Order was challenged by the appellant before the tribunal, at the hearing of the appeal in this Court Mr. Veda Vyasa expressly stated that he did not want to raise that point in the present appeal. | 0 | 1,641 | 718 | ### Instruction:
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Veda Vyasa contends that this finding is erroneous.3. The construction of the clause itself presents no difficulty. What has given rise to the controversy, however, in the question as to whether the head office employees are in fact and in law employed by the appellant In dealing with this question the tribunal had naturally to consider the evidence adduced by the parties and it is in the light of the said evidence that the tribunal has ultimately reached the conclusion that the head office staff at Calcutta are not the employees of the appellant Sri Sitaram Sugar Mills Co. Ltd. This is a question of fact and normally we would be reluctant to interfere with the finding of the tribunal on such a question of fact. The conclusion drawn by the tribunal rests on the appreciation of evidence and no question of law is involved in the process of reaching that conclusion. However, since the matter has been elaborately argued before us we propose to indicate briefly what the evidence is and what inference legitimately follows from it.4. It is common ground that M/s. Karam Chand Thapar and Bros. Private Ltd., who were the Managing Agents of the appellant during the relevant period were during the same period Managing Agents of two other sugar mills, viz., Deoria Suguar Mills Ltd., U. P. and Mohini sugar Mills Ltd., Bihar. Besides they were the Secretaries and Treasurers of the Siwan Sugar Mills, Bihar. Mr. Verma, who is the Assistant Chief Accountant of the appellant, filed earning sheets of the establishment at the appellants head office at Calcutta for the season 1953-1954; and he stated that the employees in question were the appellants employees and not those of the Managing Agents. He, however, admitted that the said employees were working for the other concerns in which the Managing Agents were interested and their salaries contributed by the appellant along with the said other concerns. Mr. Thaper, Manager of the appellant, who also gave evidence referred to the several activities of the appellant and stated that the personnel whether posted at the mills or at the head office at Calcutta which is the Registered Office of the Appellant are employees of the appellant. He, however, admitted that the employees at the head office are not on the roll of the factory at Betalpur and we are concerned with the dispute raised by the workmen at Betalpur. From this evidence the tribunal has found that the employees in question worked for all the four sugar factories with which the Managing Agents of the appellant are connected and that their salaries are contributed by the said four sugar factories. It has also observed that for several years past the employees who work in the factories have been protesting, and successfully, against the payment of any share of the bonus to the employees at the head office. The Tribunal has then commented on the fact that the contract of the Managing Agency executed in favour of the Managing Agents by the appellant had not been produced; and it thought that in substance the employees were the employees of the Managing Agents at whose instance the respective concerns with which they were concerned were bearing the salary bill in regard to them. The only evidence which has been produced by the appellant is the earning sheets and that shows no more than the quota of the salaries paid by the appellant to the respective employees. If, on these facts, the tribunal came to the conclusion that the appellant had not shown that the employees in question were its employees, we do not see why we should interfere with it.5. It would have been very easy for the appellant to produce the letters of appointment given to the employees at the head office. The appellant might also have conveniently produced the roll of the employees engaged by its Managing Agents. It is true that Mr. Vyasa contended that the onus was on the respondent to show that the share of the bonus had been wrongfully paid to the employees at the head office. In our opinion, it would be unreasonable to rely on technical or academic considerations of onus in such matters. Besides, it is obvious that the relevant facts are within the knowledge of the appellant and cannot possibly be known to the respondents. Mr. Veda Vyasa also suggested that the respondents could have called upon by the appellant to produce the relevant documents. That again is a technical plea the importance of which cannot be exaggerated in industrial proceedings. The appellant knew that its workmen in the factories had been consistently raising an objection against the payment of any bonus to the head office staff. In such a case it was clearly the duty of the appellant to produce all the material evidence within its possession. That being so we do not think that the appellant can successfully challenge the finding of fact recorded by the tribunal that the persons in question are not employed in or under the appellants concern6. The tribunal has also found that the Government Order in question applied to U. P. only and so the head office staff cannot claim a share in the bonus. According to the tribunal it is only the employees of the factory who are entitled to the bonus under the agreement embodied in the Government Notification, and that again is another ground on which the head office staff must be excluded. In view of the fact that we see no reason to interfere with the first finding of the tribunal we do not propose to consider the other findings made by it. Before we part with this appeal we ought to make it clear that though the validity of the Government Order was challenged by the appellant before the tribunal, at the hearing of the appeal in this Court Mr. Veda Vyasa expressly stated that he did not want to raise that point in the present appeal.
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Mr. Thaper, Manager of the appellant, who also gave evidence referred to the several activities of the appellant and stated that the personnel whether posted at the mills or at the head office at Calcutta which is the Registered Office of the Appellant are employees of the appellant. He, however, admitted that the employees at the head office are not on the roll of the factory at Betalpur and we are concerned with the dispute raised by the workmen at Betalpur. From this evidence the tribunal has found that the employees in question worked for all the four sugar factories with which the Managing Agents of the appellant are connected and that their salaries are contributed by the said four sugar factories. It has also observed that for several years past the employees who work in the factories have been protesting, and successfully, against the payment of any share of the bonus to the employees at the head office. The Tribunal has then commented on the fact that the contract of the Managing Agency executed in favour of the Managing Agents by the appellant had not been produced; and it thought that in substance the employees were the employees of the Managing Agents at whose instance the respective concerns with which they were concerned were bearing the salary bill in regard to them. The only evidence which has been produced by the appellant is the earning sheets and that shows no more than the quota of the salaries paid by the appellant to the respective employees. If, on these facts, the tribunal came to the conclusion that the appellant had not shown that the employees in question were its employees, we do not see why we should interfere with it.5. It would have been very easy for the appellant to produce the letters of appointment given to the employees at the head office. The appellant might also have conveniently produced the roll of the employees engaged by its Managing Agents. It is true that Mr. Vyasa contended that the onus was on the respondent to show that the share of the bonus had been wrongfully paid to the employees at the head office. In our opinion, it would be unreasonable to rely on technical or academic considerations of onus in such matters. Besides, it is obvious that the relevant facts are within the knowledge of the appellant and cannot possibly be known to the respondents.Mr. Veda Vyasa also suggested that the respondents could have called upon by the appellant to produce the relevant documents.That again is a technical plea the importance of which cannot be exaggerated in industrial proceedings. The appellant knew that its workmen in the factories had been consistently raising an objection against the payment of any bonus to the head office staff. In such a case it was clearly the duty of the appellant to produce all the material evidence within its possession. That being so we do not think that the appellant can successfully challenge the finding of fact recorded by the tribunal that the persons in question are not employed in or under the appellants concern6. The tribunal has also found that the Government Order in question applied to U. P. only and so the head office staff cannot claim a share in the bonus. According to the tribunal it is only the employees of the factory who are entitled to the bonus under the agreement embodied in the Government Notification, and that again is another ground on which the head office staff must be excluded. In view of the fact that we see no reason to interfere with the first finding of the tribunal we do not propose to consider the other findings made by it. Before we part with this appeal we ought to make it clear that though the validity of the Government Order was challenged by the appellant before the tribunal, at the hearing of the appeal in this Court Mr. Veda Vyasa expressly stated that he did not want to raise that point in the present appeal.
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Gopibai Ghanshamdas Advani (Smt.) & Others Vs. Food Corporation of India & Others | policy has been interpreted by the Supreme Court to include even a person who is given a lift. It would thus be clear that it would not be necessary to construe the term passenger to mean that the person must be a passenger in any passenger service or stage carriage vehicle. 12. The above discussion would, therefore, show that the Insurance Company would be liable if deceased Ghanshamdas was being carried in the car by reason of or in pursuance of a contract of employment. We have already observed that deceased Ghanshamdas accompanied by the other officers of the Corporation had gone to Shrirampur on official duty and were returning after performing such duty. Obviously, it will not be possible for the Insurance Company to contend that Ghanshamdas was not being carried in the car by reason of or in pursuance of a contract of employment with the Corporation. 13. Mr. Chaphekar, however, contended that simply because on that particular day, deceased Ghanshamdas was so carried in the car would not necessarily fasten any liability on the Insurance Company unless there is evidence to show that the Car No. MRH 4969 was habitually used for carrying persons by reason of or in pursuance of a contract of employment. He drew our attention to a decision of the Kings Bench in the case of (Izzard v. Universal Insurance Co. Ltd.)4, reported in 1937(3) All.E.R. 79. Section 39 of the Road Traffic Act and the relevant clause in proviso (ii) of section 95 of the Motor Vehicles Act are practically similar. In that case the owner of a motor car took the plaintiff to London and received certain amount as hire. On the way the car met with an accident on account of rashness and negligence of the driver. The car was insured under the provisions of section 36 of the Road Traffic Act. The question arose as to whether the Insurance Company was bound to pay the compensation under the insurance policy. It was held that with a view that the vehicle should be a vehicle in which passengers are carried for hire or reward, it is necessary that the vehicle should normally and habitually be used in that way and that an isolated occasion of carrying a passenger for hire or reward would not make that vehicle of a type needed to be covered by the insurance policy. Shri Chaphekar also relied upon the commentary from the book, Shawcross on Motor Insurance, II Edition. In that commentary the above-mentioned case of Izzard v. Universal Insurance Co. Ltd., has been discussed and it has been observed that the vehicle should be habitually used for the purpose as contemplated by the relevant clause of carrying passengers for hire reward. On page 208, the commentary reads as follows :--- "As to the point whether the vehicles in which passengers are carried in pursuance of or by reason of a contract of employment are confined to those used habitually for such purposes, it is noticeable that both Izzards case and the case of Baker v. Provident Accident and White Cross Insurance Co. Ltd. (o), the vehicles were in fact habitually used in such a manner. The point was not taken in either case, but it is submitted that in the authority of Wyatt v. Guildhall Insurance Co. Ltd., habitual user of this nature must be proved in order that the claim may succeed."14. In our opinion, in the present case it is not necessary to decide as to whether the vehicle should be habitually used for carrying passengers by reason of or in pursuance of a contract of employment as suggested by Mr. Chaphekar. We do not propose to express any opinion on this requirement as, in our opinion, even if the contention of Mr. Chaphekar is accepted, there is abundant material to hold that deceased Ghanshamdas was carried in a vehicle which is habitually used for carrying passengers by reason of or in pursuance of a contract of employment. In that first place, it is material to note that the Insurance Company has not raised any specific plea that the vehicle in question was not so habitually used. Apart from that, the written statement filed by the Insurance Company makes the position clear. In paragraph 2, Insurance Company has pleaded as follows :--- "The insurers further say and submit that at all material times, the deceased was being carried in the aforesaid vehicle in pursuance of his contract of employment with the Opposite Party No. 2 and his death arose out of and in the course of his employment with said opposite party." In our opinion, that statement constitutes an admission that Ghanshamdas was carried in a vehicle which is habitually used for carrying passengers by reason of or in pursuance of a contract of employment.15. There is one more aspect which cannot be forgotten. In the present case, the owner of the vehicle, namely, the Food Corporation of India is a statutory Corporation. This Corporation has its headquarters at Delhi and at Manmad there is a sort of branch office or sub-office. It is at this branch office that the Ambassador Car No. MRH 4969 was kept for the office use and for obvious reasons the said car can or should be used only by the employees of the Food Corporation of India and that too by reason of or in pursuance of their contract of employment with the Corporation. In view of these circumstances we do not think that there is any substance in the contention of the Insurance Company that the vehicle was not habitually used for the purpose that is needed under the relevant clause of the second proviso of section 95 of the Motor Vehicles Act. The Insurance Company would, therefore, be equally liable to pay the compensation that has been awarded by the Motor Accidents Claims Tribunal and to that extent the order of the Tribunal needs to be modified. Hence, we pass the following order :--- | 1[ds]8. It is true that the claimants have not been able to examine any person who had actually seen as to how the car fell in the canal. However, such evidence is not always necessary and many a times that type of evidence may not be available. The Motor Accidents Claims Tribunal has relied upon the principle of res ipsa loquitor for the purpose of deciding as to whether the circumstances are such that rashness and negligence on the part of the driver can be conclusively inferred. It is in evidence that it was a dark night and there were no light on the kaccha road. Driver More has admitted that when he started driving the vehicle on the kaccha road by the side of the canal, the car was wobbling and that it was taking turns. Even then he continued to drive the vehicle. It is material to note that the road was itself a kaccha one and was passing by the side of the canal. The very fact that the car was wobbling and taking turns would indicate that the driver could have taken the decision not to proceed further. However, he did go ahead and in that process the unfortunate incident of the fall of the car in the canal took place. In our opinion, the circumstances are so eloquent that rashness and negligence on the part of the driver requires to be deduced and it will not be open for Mr. Advani to contend that those circumstances should be brushed aside simply because the claimants are not able to lead evidence of an independent witness. In our opinion, the learned District Judge and Ex Officio Member of the Motor Accidents Claims Tribunal, Ahmednagar has rightly recorded a finding that Ghanshamdas met his death on account of the rash and negligent driving of driver More.The above discussion would, therefore, show that the Insurance Company would be liable if deceased Ghanshamdas was being carried in the car by reason of or in pursuance of a contract of employment. We have already observed that deceased Ghanshamdas accompanied by the other officers of the Corporation had gone to Shrirampur on official duty and were returning after performing such duty. Obviously, it will not be possible for the Insurance Company to contend that Ghanshamdas was not being carried in the car by reason of or in pursuance of a contract of employment with thethat case the owner of a motor car took the plaintiff to London and received certain amount as hire. On the way the car met with an accident on account of rashness and negligence of the driver. The car was insured under the provisions of section 36 of the Road Traffic Act. The question arose as to whether the Insurance Company was bound to pay the compensation under the insurance policy. It was held that with a view that the vehicle should be a vehicle in which passengers are carried for hire or reward, it is necessary that the vehicle should normally and habitually be used in that way and that an isolated occasion of carrying a passenger for hire or reward would not make that vehicle of a type needed to be covered by the insurance policy. Shri Chaphekar also relied upon the commentary from the book, Shawcross on Motor Insurance, II Edition. In that commentary thecase of Izzard v. Universal Insurance Co. Ltd., has been discussed and it has been observed that the vehicle should be habitually used for the purpose as contemplated by the relevant clause of carrying passengers for hire reward. On page 208, the commentary reads as followsto the point whether the vehicles in which passengers are carried in pursuance of or by reason of a contract of employment are confined to those used habitually for such purposes, it is noticeable that both Izzards case and the case of Baker v. Provident Accident and White Cross Insurance Co. Ltd. (o), the vehicles were in fact habitually used in such a manner. The point was not taken in either case, but it is submitted that in the authority of Wyatt v. Guildhall Insurance Co. Ltd., habitual user of this nature must be proved in order that the claim may succeed."14. In our opinion, in the present case it is not necessary to decide as to whether the vehicle should be habitually used for carrying passengers by reason of or in pursuance of a contract of employment as suggested by Mr. Chaphekar. We do not propose to express any opinion on this requirement as, in our opinion, even if the contention of Mr. Chaphekar is accepted, there is abundant material to hold that deceased Ghanshamdas was carried in a vehicle which is habitually used for carrying passengers by reason of or in pursuance of a contract of employment. In that first place, it is material to note that the Insurance Company has not raised any specific plea that the vehicle in question was not so habitually used. Apart from that, the written statement filed by the Insurance Company makes the position clear. In paragraph 2, Insurance Company has pleaded as followsinsurers further say and submit that at all material times, the deceased was being carried in the aforesaid vehicle in pursuance of his contract of employment with the Opposite Party No. 2 and his death arose out of and in the course of his employment with said oppositeour opinion, that statement constitutes an admission that Ghanshamdas was carried in a vehicle which is habitually used for carrying passengers by reason of or in pursuance of a contract of employment.There is one more aspect which cannot be forgotten. In the present case, the owner of the vehicle, namely, the Food Corporation of India is a statutory Corporation. This Corporation has its headquarters at Delhi and at Manmad there is a sort of branch office orIt is at this branch office that the Ambassador Car No. MRH 4969 was kept for the office use and for obvious reasons the said car can or should be used only by the employees of the Food Corporation of India and that too by reason of or in pursuance of their contract of employment with the Corporation. In view of these circumstances we do not think that there is any substance in the contention of the Insurance Company that the vehicle was not habitually used for the purpose that is needed under the relevant clause of the second proviso of section 95 of the Motor Vehicles Act. The Insurance Company would, therefore, be equally liable to pay the compensation that has been awarded by the Motor Accidents Claims Tribunal and to that extent the order of the Tribunal needs to be modified. | 1 | 4,231 | 1,195 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
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policy has been interpreted by the Supreme Court to include even a person who is given a lift. It would thus be clear that it would not be necessary to construe the term passenger to mean that the person must be a passenger in any passenger service or stage carriage vehicle. 12. The above discussion would, therefore, show that the Insurance Company would be liable if deceased Ghanshamdas was being carried in the car by reason of or in pursuance of a contract of employment. We have already observed that deceased Ghanshamdas accompanied by the other officers of the Corporation had gone to Shrirampur on official duty and were returning after performing such duty. Obviously, it will not be possible for the Insurance Company to contend that Ghanshamdas was not being carried in the car by reason of or in pursuance of a contract of employment with the Corporation. 13. Mr. Chaphekar, however, contended that simply because on that particular day, deceased Ghanshamdas was so carried in the car would not necessarily fasten any liability on the Insurance Company unless there is evidence to show that the Car No. MRH 4969 was habitually used for carrying persons by reason of or in pursuance of a contract of employment. He drew our attention to a decision of the Kings Bench in the case of (Izzard v. Universal Insurance Co. Ltd.)4, reported in 1937(3) All.E.R. 79. Section 39 of the Road Traffic Act and the relevant clause in proviso (ii) of section 95 of the Motor Vehicles Act are practically similar. In that case the owner of a motor car took the plaintiff to London and received certain amount as hire. On the way the car met with an accident on account of rashness and negligence of the driver. The car was insured under the provisions of section 36 of the Road Traffic Act. The question arose as to whether the Insurance Company was bound to pay the compensation under the insurance policy. It was held that with a view that the vehicle should be a vehicle in which passengers are carried for hire or reward, it is necessary that the vehicle should normally and habitually be used in that way and that an isolated occasion of carrying a passenger for hire or reward would not make that vehicle of a type needed to be covered by the insurance policy. Shri Chaphekar also relied upon the commentary from the book, Shawcross on Motor Insurance, II Edition. In that commentary the above-mentioned case of Izzard v. Universal Insurance Co. Ltd., has been discussed and it has been observed that the vehicle should be habitually used for the purpose as contemplated by the relevant clause of carrying passengers for hire reward. On page 208, the commentary reads as follows :--- "As to the point whether the vehicles in which passengers are carried in pursuance of or by reason of a contract of employment are confined to those used habitually for such purposes, it is noticeable that both Izzards case and the case of Baker v. Provident Accident and White Cross Insurance Co. Ltd. (o), the vehicles were in fact habitually used in such a manner. The point was not taken in either case, but it is submitted that in the authority of Wyatt v. Guildhall Insurance Co. Ltd., habitual user of this nature must be proved in order that the claim may succeed."14. In our opinion, in the present case it is not necessary to decide as to whether the vehicle should be habitually used for carrying passengers by reason of or in pursuance of a contract of employment as suggested by Mr. Chaphekar. We do not propose to express any opinion on this requirement as, in our opinion, even if the contention of Mr. Chaphekar is accepted, there is abundant material to hold that deceased Ghanshamdas was carried in a vehicle which is habitually used for carrying passengers by reason of or in pursuance of a contract of employment. In that first place, it is material to note that the Insurance Company has not raised any specific plea that the vehicle in question was not so habitually used. Apart from that, the written statement filed by the Insurance Company makes the position clear. In paragraph 2, Insurance Company has pleaded as follows :--- "The insurers further say and submit that at all material times, the deceased was being carried in the aforesaid vehicle in pursuance of his contract of employment with the Opposite Party No. 2 and his death arose out of and in the course of his employment with said opposite party." In our opinion, that statement constitutes an admission that Ghanshamdas was carried in a vehicle which is habitually used for carrying passengers by reason of or in pursuance of a contract of employment.15. There is one more aspect which cannot be forgotten. In the present case, the owner of the vehicle, namely, the Food Corporation of India is a statutory Corporation. This Corporation has its headquarters at Delhi and at Manmad there is a sort of branch office or sub-office. It is at this branch office that the Ambassador Car No. MRH 4969 was kept for the office use and for obvious reasons the said car can or should be used only by the employees of the Food Corporation of India and that too by reason of or in pursuance of their contract of employment with the Corporation. In view of these circumstances we do not think that there is any substance in the contention of the Insurance Company that the vehicle was not habitually used for the purpose that is needed under the relevant clause of the second proviso of section 95 of the Motor Vehicles Act. The Insurance Company would, therefore, be equally liable to pay the compensation that has been awarded by the Motor Accidents Claims Tribunal and to that extent the order of the Tribunal needs to be modified. Hence, we pass the following order :---
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by the side of the canal, the car was wobbling and that it was taking turns. Even then he continued to drive the vehicle. It is material to note that the road was itself a kaccha one and was passing by the side of the canal. The very fact that the car was wobbling and taking turns would indicate that the driver could have taken the decision not to proceed further. However, he did go ahead and in that process the unfortunate incident of the fall of the car in the canal took place. In our opinion, the circumstances are so eloquent that rashness and negligence on the part of the driver requires to be deduced and it will not be open for Mr. Advani to contend that those circumstances should be brushed aside simply because the claimants are not able to lead evidence of an independent witness. In our opinion, the learned District Judge and Ex Officio Member of the Motor Accidents Claims Tribunal, Ahmednagar has rightly recorded a finding that Ghanshamdas met his death on account of the rash and negligent driving of driver More.The above discussion would, therefore, show that the Insurance Company would be liable if deceased Ghanshamdas was being carried in the car by reason of or in pursuance of a contract of employment. We have already observed that deceased Ghanshamdas accompanied by the other officers of the Corporation had gone to Shrirampur on official duty and were returning after performing such duty. Obviously, it will not be possible for the Insurance Company to contend that Ghanshamdas was not being carried in the car by reason of or in pursuance of a contract of employment with thethat case the owner of a motor car took the plaintiff to London and received certain amount as hire. On the way the car met with an accident on account of rashness and negligence of the driver. The car was insured under the provisions of section 36 of the Road Traffic Act. The question arose as to whether the Insurance Company was bound to pay the compensation under the insurance policy. It was held that with a view that the vehicle should be a vehicle in which passengers are carried for hire or reward, it is necessary that the vehicle should normally and habitually be used in that way and that an isolated occasion of carrying a passenger for hire or reward would not make that vehicle of a type needed to be covered by the insurance policy. Shri Chaphekar also relied upon the commentary from the book, Shawcross on Motor Insurance, II Edition. In that commentary thecase of Izzard v. Universal Insurance Co. Ltd., has been discussed and it has been observed that the vehicle should be habitually used for the purpose as contemplated by the relevant clause of carrying passengers for hire reward. On page 208, the commentary reads as followsto the point whether the vehicles in which passengers are carried in pursuance of or by reason of a contract of employment are confined to those used habitually for such purposes, it is noticeable that both Izzards case and the case of Baker v. Provident Accident and White Cross Insurance Co. Ltd. (o), the vehicles were in fact habitually used in such a manner. The point was not taken in either case, but it is submitted that in the authority of Wyatt v. Guildhall Insurance Co. Ltd., habitual user of this nature must be proved in order that the claim may succeed."14. In our opinion, in the present case it is not necessary to decide as to whether the vehicle should be habitually used for carrying passengers by reason of or in pursuance of a contract of employment as suggested by Mr. Chaphekar. We do not propose to express any opinion on this requirement as, in our opinion, even if the contention of Mr. Chaphekar is accepted, there is abundant material to hold that deceased Ghanshamdas was carried in a vehicle which is habitually used for carrying passengers by reason of or in pursuance of a contract of employment. In that first place, it is material to note that the Insurance Company has not raised any specific plea that the vehicle in question was not so habitually used. Apart from that, the written statement filed by the Insurance Company makes the position clear. In paragraph 2, Insurance Company has pleaded as followsinsurers further say and submit that at all material times, the deceased was being carried in the aforesaid vehicle in pursuance of his contract of employment with the Opposite Party No. 2 and his death arose out of and in the course of his employment with said oppositeour opinion, that statement constitutes an admission that Ghanshamdas was carried in a vehicle which is habitually used for carrying passengers by reason of or in pursuance of a contract of employment.There is one more aspect which cannot be forgotten. In the present case, the owner of the vehicle, namely, the Food Corporation of India is a statutory Corporation. This Corporation has its headquarters at Delhi and at Manmad there is a sort of branch office orIt is at this branch office that the Ambassador Car No. MRH 4969 was kept for the office use and for obvious reasons the said car can or should be used only by the employees of the Food Corporation of India and that too by reason of or in pursuance of their contract of employment with the Corporation. In view of these circumstances we do not think that there is any substance in the contention of the Insurance Company that the vehicle was not habitually used for the purpose that is needed under the relevant clause of the second proviso of section 95 of the Motor Vehicles Act. The Insurance Company would, therefore, be equally liable to pay the compensation that has been awarded by the Motor Accidents Claims Tribunal and to that extent the order of the Tribunal needs to be modified.
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LT COL. PARAMJIT SINGH DHILLON Vs. HARINDER SINGH GHUMAN | dated 15 th April, 2017 that came to be challenged in the writ petition under Article 227 of the Constitution of India filed at the instance of the defendant Smt. Harinder Singh Ghuman which also came to be dismissed after assigning cogent and valid reasons under Order dated 4 th April, 2018.17. Both the learned counsels have supported their respective pleas and so far as the application filed in the pending suit in the Delhi High Court under Order 7 Rule 11 CPC is concerned, learned counsel for Smt. Harinder Singh Ghuman submits that Section 185 of the Delhi Land Reforms Act is not applicable as the area where the subject property is situated has been ?urbanised? under the Delhi Municipal Corporation Act, 1957. The Delhi Land Reforms Act would only be applicable to the lands which are rural in nature and after issuance of a notification under Section 507(a) of the Delhi Municipal Corporation Act, 1957 dated 23 rd May, 1963, the subject land ceased to be rural land and has been declared ?urbanised? which is not under the jurisdiction of the Land Reforms Act.18. Learned counsel further submits that in view of Section 17 of the Code of Civil Procedure, 1908, where more than one court has a jurisdiction, a suit can be filed at any one Court where any one immovable property is situated and further submits that Section 158 of the Punjab Land Revenue Act, 1887 will not have any application from the relief which she has claimed in the suit filed for partition of the estate of late Shri K.S. Dhillon in the High Court of Delhi.19. So far as the Civil Appeal @ SLP( C ) No. 22118 of 2018 preferred by Smt. Harinder Singh Ghuman is concerned, learned counsel submits that the additional issues which were framed as 3A and 3B goes into the root of the matter and if such issues are decided first as the preliminary issue, further issues which are framed may not require any adjudication.20. Per contra, learned counsel for Lt. Col. Paramjit Singh Dhillon submits that the application which he filed under Order 7 Rule 11 of Code of Civil Procedure, 1908, the High Court of Delhi has exceeded its jurisdiction in taking note of the written statement. To the contrary, at the stage of Order 7 Rule 11 of Code of Civil Procedure, 1908, it is the plaint which alone is to be looked into as to whether the suit is barred by law but the High Court of Delhi has looked into the written statement to non-suit his claim for rejectment of the suit plaint and submits that so far as the objection raised by Smt. Harinder Singh Ghuman to decide additional issues 3A and 3B as the preliminary issues in the first instance, cogent reasons have been assigned by the trial Judge and confirmed by the High Court under the impugned judgment. That apart, the additional issues framed certainly have to be looked into on the basis of the evidence on record and the matter is at its advanced stage, in the given facts and circumstances, confining the additional issues to be answered at the first instance will delay the proceedings and this what the High Court has observed in the order impugned.21. We have heard the learned counsel for the parties and after going through the records, we are of the view that both the appeals are without substance and deserves to be dismissed for the reason that in the suit for partition filed at the instance of Smt. Harinder Singh Ghuman in the High Court of Delhi, while examining the application filed by Lt. Col. Paramjit Singh Dhillon under Order 7 Rule 11 CPC, cogent reasons have been assigned by the Single Judge of the High Court in the first instance and confirmed by the Division Bench of the High Court in appeal preferred at the instance of Lt. Col. Paramjit Singh Dhillon and we are in agreement of the view expressed and does not call for our interference.22. So far as the plea raised by Smt. Harinder Singh Ghuman in the pending suit before the SBS Nagar, Punjab is concerned, the trial Judge has taken note of the facts in detail and arrived to the conclusion that no useful purpose will be served in taking additional issues 3A and 3B as the preliminary issues taking note of the fact that the suit was filed in the year 2012 and proceedings could not have been followed up further because of the interim applications being filed one after the other and there is a direction of the High Court to dispose of the pending suit expeditiously, in the given circumstances, the trial Judge felt it appropriate that the matter be decided along with the other issues pending adjudication and that view has been confirmed by the High Court in its revisional jurisdiction assigning cogent reasons. We are of the view that the reasons assigned are unassailable.23. We do not find any substance in the civil appeals on merits but looking into the peculiar facts which has been brought to our notice that for the self-same subject property, suit for partition bearing no. CS(OS) No. 373 of 2012 has been filed by Smt. Harinder Singh Ghuman in the original side of Delhi High Court and at the same time, suit has been filed by Lt. Col. Paramjit Singh Dhillon in the Court of Civil Judge, Senior Division, SBS Nagar, Punjab seeking declaration that plaintiff is the absolute owner and possession of the properties indicated in the suit plaint on the basis of the will of late Shri K.S. Dhillon. The plea on which rights have been claimed by the parties inter se may be different but the subject property being the same and parties are the legal heirs of late Shri K.S. Dhillon, to avoid conflicting views and multiplicity of litigation, it has been considered that both the matters be clubbed and be heard together. | 0[ds]21. We have heard the learned counsel for the parties and after going through the records, we are of the view that both the appeals are without substance and deserves to be dismissed for the reason that in the suit for partition filed at the instance of Smt. Harinder Singh Ghuman in the High Court of Delhi, while examining the application filed by Lt. Col. Paramjit Singh Dhillon under Order 7 Rule 11 CPC, cogent reasons have been assigned by the Single Judge of the High Court in the first instance and confirmed by the Division Bench of the High Court in appeal preferred at the instance of Lt. Col. Paramjit Singh Dhillon and we are in agreement of the view expressed and does not call for our interference.22. So far as the plea raised by Smt. Harinder Singh Ghuman in the pending suit before the SBS Nagar, Punjab is concerned, the trial Judge has taken note of the facts in detail and arrived to the conclusion that no useful purpose will be served in taking additional issues 3A and 3B as the preliminary issues taking note of the fact that the suit was filed in the year 2012 and proceedings could not have been followed up further because of the interim applications being filed one after the other and there is a direction of the High Court to dispose of the pending suit expeditiously, in the given circumstances, the trial Judge felt it appropriate that the matter be decided along with the other issues pending adjudication and that view has been confirmed by the High Court in its revisional jurisdiction assigning cogent reasons. We are of the view that the reasons assigned are unassailable.23. We do not find any substance in the civil appeals on merits but looking into the peculiar facts which has been brought to our notice that for the self-same subject property, suit for partition bearing no. CS(OS) No. 373 of 2012 has been filed by Smt. Harinder Singh Ghuman in the original side of Delhi High Court and at the same time, suit has been filed by Lt. Col. Paramjit Singh Dhillon in the Court of Civil Judge, Senior Division, SBS Nagar, Punjab seeking declaration that plaintiff is the absolute owner and possession of the properties indicated in the suit plaint on the basis of the will of late Shri K.S. Dhillon. The plea on which rights have been claimed by the parties inter se may be different but the subject property being the same and parties are the legal heirs of late Shri K.S. Dhillon, to avoid conflicting views and multiplicity of litigation, it has been considered that both the matters be clubbed and be heard together. | 0 | 2,668 | 487 | ### Instruction:
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dated 15 th April, 2017 that came to be challenged in the writ petition under Article 227 of the Constitution of India filed at the instance of the defendant Smt. Harinder Singh Ghuman which also came to be dismissed after assigning cogent and valid reasons under Order dated 4 th April, 2018.17. Both the learned counsels have supported their respective pleas and so far as the application filed in the pending suit in the Delhi High Court under Order 7 Rule 11 CPC is concerned, learned counsel for Smt. Harinder Singh Ghuman submits that Section 185 of the Delhi Land Reforms Act is not applicable as the area where the subject property is situated has been ?urbanised? under the Delhi Municipal Corporation Act, 1957. The Delhi Land Reforms Act would only be applicable to the lands which are rural in nature and after issuance of a notification under Section 507(a) of the Delhi Municipal Corporation Act, 1957 dated 23 rd May, 1963, the subject land ceased to be rural land and has been declared ?urbanised? which is not under the jurisdiction of the Land Reforms Act.18. Learned counsel further submits that in view of Section 17 of the Code of Civil Procedure, 1908, where more than one court has a jurisdiction, a suit can be filed at any one Court where any one immovable property is situated and further submits that Section 158 of the Punjab Land Revenue Act, 1887 will not have any application from the relief which she has claimed in the suit filed for partition of the estate of late Shri K.S. Dhillon in the High Court of Delhi.19. So far as the Civil Appeal @ SLP( C ) No. 22118 of 2018 preferred by Smt. Harinder Singh Ghuman is concerned, learned counsel submits that the additional issues which were framed as 3A and 3B goes into the root of the matter and if such issues are decided first as the preliminary issue, further issues which are framed may not require any adjudication.20. Per contra, learned counsel for Lt. Col. Paramjit Singh Dhillon submits that the application which he filed under Order 7 Rule 11 of Code of Civil Procedure, 1908, the High Court of Delhi has exceeded its jurisdiction in taking note of the written statement. To the contrary, at the stage of Order 7 Rule 11 of Code of Civil Procedure, 1908, it is the plaint which alone is to be looked into as to whether the suit is barred by law but the High Court of Delhi has looked into the written statement to non-suit his claim for rejectment of the suit plaint and submits that so far as the objection raised by Smt. Harinder Singh Ghuman to decide additional issues 3A and 3B as the preliminary issues in the first instance, cogent reasons have been assigned by the trial Judge and confirmed by the High Court under the impugned judgment. That apart, the additional issues framed certainly have to be looked into on the basis of the evidence on record and the matter is at its advanced stage, in the given facts and circumstances, confining the additional issues to be answered at the first instance will delay the proceedings and this what the High Court has observed in the order impugned.21. We have heard the learned counsel for the parties and after going through the records, we are of the view that both the appeals are without substance and deserves to be dismissed for the reason that in the suit for partition filed at the instance of Smt. Harinder Singh Ghuman in the High Court of Delhi, while examining the application filed by Lt. Col. Paramjit Singh Dhillon under Order 7 Rule 11 CPC, cogent reasons have been assigned by the Single Judge of the High Court in the first instance and confirmed by the Division Bench of the High Court in appeal preferred at the instance of Lt. Col. Paramjit Singh Dhillon and we are in agreement of the view expressed and does not call for our interference.22. So far as the plea raised by Smt. Harinder Singh Ghuman in the pending suit before the SBS Nagar, Punjab is concerned, the trial Judge has taken note of the facts in detail and arrived to the conclusion that no useful purpose will be served in taking additional issues 3A and 3B as the preliminary issues taking note of the fact that the suit was filed in the year 2012 and proceedings could not have been followed up further because of the interim applications being filed one after the other and there is a direction of the High Court to dispose of the pending suit expeditiously, in the given circumstances, the trial Judge felt it appropriate that the matter be decided along with the other issues pending adjudication and that view has been confirmed by the High Court in its revisional jurisdiction assigning cogent reasons. We are of the view that the reasons assigned are unassailable.23. We do not find any substance in the civil appeals on merits but looking into the peculiar facts which has been brought to our notice that for the self-same subject property, suit for partition bearing no. CS(OS) No. 373 of 2012 has been filed by Smt. Harinder Singh Ghuman in the original side of Delhi High Court and at the same time, suit has been filed by Lt. Col. Paramjit Singh Dhillon in the Court of Civil Judge, Senior Division, SBS Nagar, Punjab seeking declaration that plaintiff is the absolute owner and possession of the properties indicated in the suit plaint on the basis of the will of late Shri K.S. Dhillon. The plea on which rights have been claimed by the parties inter se may be different but the subject property being the same and parties are the legal heirs of late Shri K.S. Dhillon, to avoid conflicting views and multiplicity of litigation, it has been considered that both the matters be clubbed and be heard together.
### Response:
0
### Explanation:
21. We have heard the learned counsel for the parties and after going through the records, we are of the view that both the appeals are without substance and deserves to be dismissed for the reason that in the suit for partition filed at the instance of Smt. Harinder Singh Ghuman in the High Court of Delhi, while examining the application filed by Lt. Col. Paramjit Singh Dhillon under Order 7 Rule 11 CPC, cogent reasons have been assigned by the Single Judge of the High Court in the first instance and confirmed by the Division Bench of the High Court in appeal preferred at the instance of Lt. Col. Paramjit Singh Dhillon and we are in agreement of the view expressed and does not call for our interference.22. So far as the plea raised by Smt. Harinder Singh Ghuman in the pending suit before the SBS Nagar, Punjab is concerned, the trial Judge has taken note of the facts in detail and arrived to the conclusion that no useful purpose will be served in taking additional issues 3A and 3B as the preliminary issues taking note of the fact that the suit was filed in the year 2012 and proceedings could not have been followed up further because of the interim applications being filed one after the other and there is a direction of the High Court to dispose of the pending suit expeditiously, in the given circumstances, the trial Judge felt it appropriate that the matter be decided along with the other issues pending adjudication and that view has been confirmed by the High Court in its revisional jurisdiction assigning cogent reasons. We are of the view that the reasons assigned are unassailable.23. We do not find any substance in the civil appeals on merits but looking into the peculiar facts which has been brought to our notice that for the self-same subject property, suit for partition bearing no. CS(OS) No. 373 of 2012 has been filed by Smt. Harinder Singh Ghuman in the original side of Delhi High Court and at the same time, suit has been filed by Lt. Col. Paramjit Singh Dhillon in the Court of Civil Judge, Senior Division, SBS Nagar, Punjab seeking declaration that plaintiff is the absolute owner and possession of the properties indicated in the suit plaint on the basis of the will of late Shri K.S. Dhillon. The plea on which rights have been claimed by the parties inter se may be different but the subject property being the same and parties are the legal heirs of late Shri K.S. Dhillon, to avoid conflicting views and multiplicity of litigation, it has been considered that both the matters be clubbed and be heard together.
|
Mishra Dhatu Nigam Ltd Vs. M Venkataiah | that in the teeth of Rules 65 to 71 of the Andhra Pradesh Factories Rules, 1950, it requires to be affirmed that the appellant has a statutory duty to provide a canteen for the workmen and consequently dismissed the appeal, resulting in the filing of the above appeal.C.A. No. 5991 of 1997:4. The above appeal has been filed by the respondents in W.P. No. 8015 of 1992 before the High Court of Andhra Pradesh, which, in turn, came to be filed by the respondent canteen workers seeking for a Writ of Mandamus directing the appellants herein (respondents before the High Court) to regularize their services from the date of appointment with all consequential benefits. By an order dated 27.11.1996, the Division Bench adverted to the decision rendered in Writ Appeal No. 385 of 1996 and allowed the claims by passing the following order: "This writ petition has to succeed vide judgment in writ appeal No.. 385 of 1996 delivered by us today as facts are similar to the facts in the said case, except that the petitioners are the employees of the instrumentality of the Government of India i.e, Bharath Dynamic Limited. The instant petition is ordered on the same terms as in writ appeal No. 385 of 1996." 5. Hence, this appeal.C.A. No. 6532 of 19976. The above appeal has been filed by the respondents No.1 & 2 in W.P. No. 8113 of 1993 before the High Court of Andhra Pradesh, which, in turn, came to be filed by the canteen workers seeking for a declaration; (a) that the appointment of contractor for running the industrial canteen (night shift) at H.P.C. Visakhapatnam Refinery as illegal and arbitrary; (b) declaring of the action of the appellants in not treating the said workers as the employees of the H.P.C. Ltd., as illegal and arbitrary and (c) consequently, direct the appellants to treat the canteen workers as the employees of the H.P.C. Ltd., and grant appropriate scales of pay to them on par with the regular employees of the Corporation from the date of their respective appointment with all consequential benefits. The Division Bench by an order dated 24.1.1997 held as follows: "The above cases, it is stated, are covered by the judgment in writ appeal No. 385 of 96 dated 27.11.96. Let the petitions accordingly be disposed of and directions issued." 7. Hence, this appeal. 8. Heard the learned senior counsel for the appellants and the respondents. On behalf of the appellant in C.A. No. 5991 of 1997, our attention was invited to Paras 125(3) to (6) and 117 in the decision reported in Steel Authority of India Ltd. & others vs. National Union Waterfront Workers & others (2001 7 SCC 1 ) in support of the plea against regularization of the canteen workers. For the appellant in C.A. No. 6532 of 1992, our attention was invited to certain observations in the decision in Indian Petrochemicals Corporation Ltd. and Another vs. Shramik Sena and others (1999) 6 SCC 439 ); Indian Overseas Bank and I.O. B. Staff Canteen Workers Union and Another (2000) 4 SCC 245 and VST Industries Ltd. vs. VST Industries Workers Union and Another (2001) 1 SCC 298 ) to support the claim against regularisation. The other learned counsel adopted the above submissions. On behalf of the respondents, relevant portions of the very judgments which are claimed to support the stand of the workers were brought to our notice, to contend that no interference is called for in these appeals.9. The submissions on behalf of the appellants relying upon certain observations in the Steel Authority of India case (supra) proceed upon an erroneous assumption that the regularization of canteen workers were being allowed and ordered on the basis of the provisions contained in the Contract Labour (Regulation and Abolition) Act, 1970 (for short the CLRA Act). The series of decisions commencing from M.M.R. Khan and others vs. Union of India & others (1990 (Supp.) SCC 191) do not lend any sustenance or credit to such a claim and, therefore, we are not persuaded to countenance the same. The relevant observations made in Paragraphs 106 and 107 by the Constitution Bench in Steel Authority of India case (supra), after specifically noticing the decision reported in VST Industries case (supra), also go against any such claims.10. Further, the decision of the Division Bench of the Andhra Pradesh High Court dated 27.11.96 in W.A. No. 430 of 1996 was the subject matter of appeal in the decision reported in VST Industries Ltd. case (supra), which, as pointed out supra, was noticed by the Constitution Bench which rendered the decision in Steel Authority of India Ltd. case (supra) and considered such line of the cases not only to stand on a different footing than the one which was the subject matter before the Constitution Bench, but also observed that where in discharge of a statutory obligation of maintaining a canteen in an establishment the principle employer availed the services of a contractor, the Courts have held that the contract labour would indeed be the employees of the principal employer and that such cases do not relate to or depend upon abolition of contract labour. So far as the decision dated 27.11.1996 of the same Division Bench rendered in Writ Appeal No. 385 of 1996 is concerned, the appeal filed against the same in C.A. No. 5990 of 1997 (National Thermal Power Corporation Ltd. vs. Karri Pothuraju & Others) was considered separately and by our judgment separately delivered today has been affirmed and the appeal by the Management has been dismissed. This decision also would squarely govern all these cases in favour of the workers. Consequently, we see no merit whatsoever in the submissions made to the contra by way of challenge in all these appeals, wherein the appellants concerned, indisputably are obliged to run the respective canteens in their establishments on account of the obligation cast upon them under the mandatory provisions of the Factories Act, 1948, and the Rules made thereunder. | 0[ds]9. The submissions on behalf of the appellants relying upon certain observations in the Steel Authority of India case (supra) proceed upon an erroneous assumption that the regularization of canteen workers were being allowed and ordered on the basis of the provisions contained in the Contract Labour (Regulation and Abolition) Act, 1970 (for short the CLRA Act). The series of decisions commencing from M.M.R. Khan and others vs. Union of India & others (1990 (Supp.) SCC 191) do not lend any sustenance or credit to such a claim and, therefore, we are not persuaded to countenance the same. The relevant observations made in Paragraphs 106 and 107 by the Constitution Bench in Steel Authority of India case (supra), after specifically noticing the decision reported in VST Industries case (supra), also go against any such claims.10. Further, the decision of the Division Bench of the Andhra Pradesh High Court dated 27.11.96 in W.A. No. 430 of 1996 was the subject matter of appeal in the decision reported in VST Industries Ltd. case (supra), which, as pointed out supra, was noticed by the Constitution Bench which rendered the decision in Steel Authority of India Ltd. case (supra) and considered such line of the cases not only to stand on a different footing than the one which was the subject matter before the Constitution Bench, but also observed that where in discharge of a statutory obligation of maintaining a canteen in an establishment the principle employer availed the services of a contractor, the Courts have held that the contract labour would indeed be the employees of the principal employer and that such cases do not relate to or depend upon abolition of contract labour. So far as the decision dated 27.11.1996 of the same Division Bench rendered in Writ Appeal No. 385 of 1996 is concerned, the appeal filed against the same in C.A. No. 5990 of 1997 (National Thermal Power Corporation Ltd. vs. Karri Pothuraju & Others) was considered separately and by our judgment separately delivered today has been affirmed and the appeal by the Management has been dismissed. This decision also would squarely govern all these cases in favour of the workers. Consequently, we see no merit whatsoever in the submissions made to the contra by way of challenge in all these appeals, wherein the appellants concerned, indisputably are obliged to run the respective canteens in their establishments on account of the obligation cast upon them under the mandatory provisions of the Factories Act, 1948, and the Rules made thereunder. | 0 | 1,637 | 475 | ### Instruction:
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that in the teeth of Rules 65 to 71 of the Andhra Pradesh Factories Rules, 1950, it requires to be affirmed that the appellant has a statutory duty to provide a canteen for the workmen and consequently dismissed the appeal, resulting in the filing of the above appeal.C.A. No. 5991 of 1997:4. The above appeal has been filed by the respondents in W.P. No. 8015 of 1992 before the High Court of Andhra Pradesh, which, in turn, came to be filed by the respondent canteen workers seeking for a Writ of Mandamus directing the appellants herein (respondents before the High Court) to regularize their services from the date of appointment with all consequential benefits. By an order dated 27.11.1996, the Division Bench adverted to the decision rendered in Writ Appeal No. 385 of 1996 and allowed the claims by passing the following order: "This writ petition has to succeed vide judgment in writ appeal No.. 385 of 1996 delivered by us today as facts are similar to the facts in the said case, except that the petitioners are the employees of the instrumentality of the Government of India i.e, Bharath Dynamic Limited. The instant petition is ordered on the same terms as in writ appeal No. 385 of 1996." 5. Hence, this appeal.C.A. No. 6532 of 19976. The above appeal has been filed by the respondents No.1 & 2 in W.P. No. 8113 of 1993 before the High Court of Andhra Pradesh, which, in turn, came to be filed by the canteen workers seeking for a declaration; (a) that the appointment of contractor for running the industrial canteen (night shift) at H.P.C. Visakhapatnam Refinery as illegal and arbitrary; (b) declaring of the action of the appellants in not treating the said workers as the employees of the H.P.C. Ltd., as illegal and arbitrary and (c) consequently, direct the appellants to treat the canteen workers as the employees of the H.P.C. Ltd., and grant appropriate scales of pay to them on par with the regular employees of the Corporation from the date of their respective appointment with all consequential benefits. The Division Bench by an order dated 24.1.1997 held as follows: "The above cases, it is stated, are covered by the judgment in writ appeal No. 385 of 96 dated 27.11.96. Let the petitions accordingly be disposed of and directions issued." 7. Hence, this appeal. 8. Heard the learned senior counsel for the appellants and the respondents. On behalf of the appellant in C.A. No. 5991 of 1997, our attention was invited to Paras 125(3) to (6) and 117 in the decision reported in Steel Authority of India Ltd. & others vs. National Union Waterfront Workers & others (2001 7 SCC 1 ) in support of the plea against regularization of the canteen workers. For the appellant in C.A. No. 6532 of 1992, our attention was invited to certain observations in the decision in Indian Petrochemicals Corporation Ltd. and Another vs. Shramik Sena and others (1999) 6 SCC 439 ); Indian Overseas Bank and I.O. B. Staff Canteen Workers Union and Another (2000) 4 SCC 245 and VST Industries Ltd. vs. VST Industries Workers Union and Another (2001) 1 SCC 298 ) to support the claim against regularisation. The other learned counsel adopted the above submissions. On behalf of the respondents, relevant portions of the very judgments which are claimed to support the stand of the workers were brought to our notice, to contend that no interference is called for in these appeals.9. The submissions on behalf of the appellants relying upon certain observations in the Steel Authority of India case (supra) proceed upon an erroneous assumption that the regularization of canteen workers were being allowed and ordered on the basis of the provisions contained in the Contract Labour (Regulation and Abolition) Act, 1970 (for short the CLRA Act). The series of decisions commencing from M.M.R. Khan and others vs. Union of India & others (1990 (Supp.) SCC 191) do not lend any sustenance or credit to such a claim and, therefore, we are not persuaded to countenance the same. The relevant observations made in Paragraphs 106 and 107 by the Constitution Bench in Steel Authority of India case (supra), after specifically noticing the decision reported in VST Industries case (supra), also go against any such claims.10. Further, the decision of the Division Bench of the Andhra Pradesh High Court dated 27.11.96 in W.A. No. 430 of 1996 was the subject matter of appeal in the decision reported in VST Industries Ltd. case (supra), which, as pointed out supra, was noticed by the Constitution Bench which rendered the decision in Steel Authority of India Ltd. case (supra) and considered such line of the cases not only to stand on a different footing than the one which was the subject matter before the Constitution Bench, but also observed that where in discharge of a statutory obligation of maintaining a canteen in an establishment the principle employer availed the services of a contractor, the Courts have held that the contract labour would indeed be the employees of the principal employer and that such cases do not relate to or depend upon abolition of contract labour. So far as the decision dated 27.11.1996 of the same Division Bench rendered in Writ Appeal No. 385 of 1996 is concerned, the appeal filed against the same in C.A. No. 5990 of 1997 (National Thermal Power Corporation Ltd. vs. Karri Pothuraju & Others) was considered separately and by our judgment separately delivered today has been affirmed and the appeal by the Management has been dismissed. This decision also would squarely govern all these cases in favour of the workers. Consequently, we see no merit whatsoever in the submissions made to the contra by way of challenge in all these appeals, wherein the appellants concerned, indisputably are obliged to run the respective canteens in their establishments on account of the obligation cast upon them under the mandatory provisions of the Factories Act, 1948, and the Rules made thereunder.
### Response:
0
### Explanation:
9. The submissions on behalf of the appellants relying upon certain observations in the Steel Authority of India case (supra) proceed upon an erroneous assumption that the regularization of canteen workers were being allowed and ordered on the basis of the provisions contained in the Contract Labour (Regulation and Abolition) Act, 1970 (for short the CLRA Act). The series of decisions commencing from M.M.R. Khan and others vs. Union of India & others (1990 (Supp.) SCC 191) do not lend any sustenance or credit to such a claim and, therefore, we are not persuaded to countenance the same. The relevant observations made in Paragraphs 106 and 107 by the Constitution Bench in Steel Authority of India case (supra), after specifically noticing the decision reported in VST Industries case (supra), also go against any such claims.10. Further, the decision of the Division Bench of the Andhra Pradesh High Court dated 27.11.96 in W.A. No. 430 of 1996 was the subject matter of appeal in the decision reported in VST Industries Ltd. case (supra), which, as pointed out supra, was noticed by the Constitution Bench which rendered the decision in Steel Authority of India Ltd. case (supra) and considered such line of the cases not only to stand on a different footing than the one which was the subject matter before the Constitution Bench, but also observed that where in discharge of a statutory obligation of maintaining a canteen in an establishment the principle employer availed the services of a contractor, the Courts have held that the contract labour would indeed be the employees of the principal employer and that such cases do not relate to or depend upon abolition of contract labour. So far as the decision dated 27.11.1996 of the same Division Bench rendered in Writ Appeal No. 385 of 1996 is concerned, the appeal filed against the same in C.A. No. 5990 of 1997 (National Thermal Power Corporation Ltd. vs. Karri Pothuraju & Others) was considered separately and by our judgment separately delivered today has been affirmed and the appeal by the Management has been dismissed. This decision also would squarely govern all these cases in favour of the workers. Consequently, we see no merit whatsoever in the submissions made to the contra by way of challenge in all these appeals, wherein the appellants concerned, indisputably are obliged to run the respective canteens in their establishments on account of the obligation cast upon them under the mandatory provisions of the Factories Act, 1948, and the Rules made thereunder.
|
Avtar Singh Brar Vs. Taj Singh and Others | Tej Singh, respondent, secured 25694 votes whereas Avtar Singh (appellant) secured 25571 votes. There were three other candidates also in the field, viz., (1) Sathi Ruplal, (2) Bhagat Puran Singh, and (3) Jagdish Chander. Ruplal secured, . 1347 votes while Bhagat Puran Singh and Jagdish Chander secured 140 and 2856 votes. respectively. It appears that the margin between the votes secured by Tej Singh (respondent) and . Avtar Singh (appellant) was only 123.2. Avtar Singh filed an election petition in the Punjab &Haryana High Court against Tej Singh alleging that he was guilty of committing corrupt practices, detailed in the petition an(l in the Statement of facts. Ruplal supported the appellant but Bhagat Puran Singh and Jagdish did not put in any appearance despite service and, therefore, the proceedings. were taken ex parte against them. Tej Singh denied having indulged in any corrupt practice as alleged by Avtar Singh.3. It is not necessary for us to . go into further details because, in our opinion, the appeal must succeed on a short point. The main corrupt practice said to have been indulged in Tej Singh was that he had got circulated pamphlets and posters among the voters of the constituency wherein he had mentioned that Ruplal: had withdrawn his candidature and any vote given to him (Tej Singh) would be deemed to be a vote for Ruplal, and the said posters were printed not by Ruplal but at the instance of Tej Singh.,4. On a perusal of the evidence-both oral and documentary- adduced by the parties, we are clearly of the opinion that the allegations of corrupt practices indulged in by Tej Singh have been clearly proved. The posters said. to have been printed and circulated are Annexures P-1 and P:2 which appear at page 42 of the second paper book and it may be necessary to extract certain portions thereof:"Keeping in view the present conditions in the country it is imperative to defeat the dictatorial Congress in these elections.Therefore, I fervently appeal to all the voters of Baghapurana Constituency to vote and elect Shri Tej. Singh, the joint . front candidate of the Akali Dal, because Shri Tej Singh is the only candidate who can defeat the Congress.. In the end r submit that every vote. cast in favour of S. Tej Singh will be deemed to have been cast in my favour, "5. According to PW 4 (Roshanlal) in whose press the posters-were printed, the order for the printing was placed by Darshan Singh and Mukhtiar Singh. - The witness goes on to state that a few (lays before Tej Singh had come to his printing press and informed him that he (Tej Singh) would be sending some work for printing. Soon thereafter the witness was approached by Darshan Singh and Mukhtiar Singh. Roshan Lal also admitted that Tej Singh was known to him. The witness further proved E x. P-5 and P-6 (vouchers) which were issued by his press and signed by him, and he stated that the payment was made to him by Darshan Singh and Mukhtiar Singh.6. The effect of the posters was to mislead the voters so as to make them believe that one of the candidates, viz.; Ruplal, had withdrawn and any vote given to Tej Singh would be considered as a vote given to Ruplal. In other words, the effect of the posters was that all the voters who would have voted for Ruplal would now cast their votes in favour of Tej Singh. As the margin of votes between the defeated and the returned candidates was very small, viz. 123 votes, if such a misrepresentation was not made, in all probability the votes would have gone to the appellant (Avtar Sing h) and, therefore, the result of the election would have been materially altered. We find a good deal of substance in the argument of the appellant. Tej Singh (R.W. 2) has not disputed that the payment-of the vouchers .(Ex. P-5 and P-6) was made by him and the vouchers were appended by him along with the return of expenses incurred during his election campaign, which was verified by him to be a true and correct statement.In these circumstances, therefore, the irresistible inference and inescapable conclusion that can be arrived at is that Tej Singh had actually paid for the posters which were printed at his instance and RupLal was not collected with the printing of the posters. Tej Singh further admitted that Bhum Raj-was incharge of his election office at Moga and that Exs. P-5 and P-6 were taken by him from Bhum Raj. He further admits that whatever expenses were incurred by Bhum Raj were incurred on his behalf. In other words, Tej Singh. falsely represented t o the voters that the posters were circulated by Ruplal whereas the same was done by or with the consent of Tej Singh. Therefore, it is clear that Ex-P-1 and P-2 which contained the appeal purporting to be of Ruplal were in fact printed at the in stance of Tej Singh and Ruplal had no connection with the same.7. In these circumstances, we are satisfied that the appellant has , proved beyond reasonable doubt that Tej Singh had indulged in corrupt practices particularly when the printing of the posters by Tej. Singh has been clearly admitted by him, as indicated above. It is also clear to us that in view of the very narrow margin of votes (123) between Tej Singh and Avtar Singh, a strong presumption and possibility that the votes polled in favour of RupLal would have gone to Avtar Singh cannot be ruled out and that would have doubtless materially altered the result of the election. Leaving aside other grounds taken by the appellant which were in fact not pressed before us, the appellant is entitled to succeed on the ground of corrupt practices (referred to above) as contemplated by S. 123(2) of the Act having been adopted by the first respondent (Tej. Singh) which have been fully proved.8 | 1[ds]In these circumstances, we are satisfied that the appellant has , proved beyond reasonable doubt that Tej Singh had indulged in corrupt practices particularly when the printing of the posters by Tej. Singh has been clearly admitted by him, as indicated above. It is also clear to us that in view of the very narrow margin of votes (123) between Tej Singh and Avtar Singh, a strong presumption and possibility that the votes polled in favour of RupLal would have gone to Avtar Singh cannot be ruled out and that would have doubtless materially altered the result of the election. Leaving aside other grounds taken by the appellant which were in fact not pressed before us, the appellant is entitled to succeed on the ground of corrupt practices (referred to above) as contemplated by S. 123(2) of the Act having been adopted by the first respondent (Tej. Singh) which have been fully proved. | 1 | 1,172 | 176 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
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Tej Singh, respondent, secured 25694 votes whereas Avtar Singh (appellant) secured 25571 votes. There were three other candidates also in the field, viz., (1) Sathi Ruplal, (2) Bhagat Puran Singh, and (3) Jagdish Chander. Ruplal secured, . 1347 votes while Bhagat Puran Singh and Jagdish Chander secured 140 and 2856 votes. respectively. It appears that the margin between the votes secured by Tej Singh (respondent) and . Avtar Singh (appellant) was only 123.2. Avtar Singh filed an election petition in the Punjab &Haryana High Court against Tej Singh alleging that he was guilty of committing corrupt practices, detailed in the petition an(l in the Statement of facts. Ruplal supported the appellant but Bhagat Puran Singh and Jagdish did not put in any appearance despite service and, therefore, the proceedings. were taken ex parte against them. Tej Singh denied having indulged in any corrupt practice as alleged by Avtar Singh.3. It is not necessary for us to . go into further details because, in our opinion, the appeal must succeed on a short point. The main corrupt practice said to have been indulged in Tej Singh was that he had got circulated pamphlets and posters among the voters of the constituency wherein he had mentioned that Ruplal: had withdrawn his candidature and any vote given to him (Tej Singh) would be deemed to be a vote for Ruplal, and the said posters were printed not by Ruplal but at the instance of Tej Singh.,4. On a perusal of the evidence-both oral and documentary- adduced by the parties, we are clearly of the opinion that the allegations of corrupt practices indulged in by Tej Singh have been clearly proved. The posters said. to have been printed and circulated are Annexures P-1 and P:2 which appear at page 42 of the second paper book and it may be necessary to extract certain portions thereof:"Keeping in view the present conditions in the country it is imperative to defeat the dictatorial Congress in these elections.Therefore, I fervently appeal to all the voters of Baghapurana Constituency to vote and elect Shri Tej. Singh, the joint . front candidate of the Akali Dal, because Shri Tej Singh is the only candidate who can defeat the Congress.. In the end r submit that every vote. cast in favour of S. Tej Singh will be deemed to have been cast in my favour, "5. According to PW 4 (Roshanlal) in whose press the posters-were printed, the order for the printing was placed by Darshan Singh and Mukhtiar Singh. - The witness goes on to state that a few (lays before Tej Singh had come to his printing press and informed him that he (Tej Singh) would be sending some work for printing. Soon thereafter the witness was approached by Darshan Singh and Mukhtiar Singh. Roshan Lal also admitted that Tej Singh was known to him. The witness further proved E x. P-5 and P-6 (vouchers) which were issued by his press and signed by him, and he stated that the payment was made to him by Darshan Singh and Mukhtiar Singh.6. The effect of the posters was to mislead the voters so as to make them believe that one of the candidates, viz.; Ruplal, had withdrawn and any vote given to Tej Singh would be considered as a vote given to Ruplal. In other words, the effect of the posters was that all the voters who would have voted for Ruplal would now cast their votes in favour of Tej Singh. As the margin of votes between the defeated and the returned candidates was very small, viz. 123 votes, if such a misrepresentation was not made, in all probability the votes would have gone to the appellant (Avtar Sing h) and, therefore, the result of the election would have been materially altered. We find a good deal of substance in the argument of the appellant. Tej Singh (R.W. 2) has not disputed that the payment-of the vouchers .(Ex. P-5 and P-6) was made by him and the vouchers were appended by him along with the return of expenses incurred during his election campaign, which was verified by him to be a true and correct statement.In these circumstances, therefore, the irresistible inference and inescapable conclusion that can be arrived at is that Tej Singh had actually paid for the posters which were printed at his instance and RupLal was not collected with the printing of the posters. Tej Singh further admitted that Bhum Raj-was incharge of his election office at Moga and that Exs. P-5 and P-6 were taken by him from Bhum Raj. He further admits that whatever expenses were incurred by Bhum Raj were incurred on his behalf. In other words, Tej Singh. falsely represented t o the voters that the posters were circulated by Ruplal whereas the same was done by or with the consent of Tej Singh. Therefore, it is clear that Ex-P-1 and P-2 which contained the appeal purporting to be of Ruplal were in fact printed at the in stance of Tej Singh and Ruplal had no connection with the same.7. In these circumstances, we are satisfied that the appellant has , proved beyond reasonable doubt that Tej Singh had indulged in corrupt practices particularly when the printing of the posters by Tej. Singh has been clearly admitted by him, as indicated above. It is also clear to us that in view of the very narrow margin of votes (123) between Tej Singh and Avtar Singh, a strong presumption and possibility that the votes polled in favour of RupLal would have gone to Avtar Singh cannot be ruled out and that would have doubtless materially altered the result of the election. Leaving aside other grounds taken by the appellant which were in fact not pressed before us, the appellant is entitled to succeed on the ground of corrupt practices (referred to above) as contemplated by S. 123(2) of the Act having been adopted by the first respondent (Tej. Singh) which have been fully proved.8
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In these circumstances, we are satisfied that the appellant has , proved beyond reasonable doubt that Tej Singh had indulged in corrupt practices particularly when the printing of the posters by Tej. Singh has been clearly admitted by him, as indicated above. It is also clear to us that in view of the very narrow margin of votes (123) between Tej Singh and Avtar Singh, a strong presumption and possibility that the votes polled in favour of RupLal would have gone to Avtar Singh cannot be ruled out and that would have doubtless materially altered the result of the election. Leaving aside other grounds taken by the appellant which were in fact not pressed before us, the appellant is entitled to succeed on the ground of corrupt practices (referred to above) as contemplated by S. 123(2) of the Act having been adopted by the first respondent (Tej. Singh) which have been fully proved.
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Narain Dass & Others Vs. Improvement Trust, Amritsar & Another | 36. It is thereafter that a scheme is sanctioned and notified by the State Government. The provisions of Chapter IV clearly disclose a keen anxiety on the party of the law-makers to see that all possible objections to the scheme are fully considered before its final sanction. It appears that any policy decisions, arrived at by the State Government for excluding from the scheme, lands under orchards, would have been considered by the State Government before finally sanctioning the scheme. There was ample opportunity for that purpose. The owners of the orchards were expected to have moved in time and the State Government could also have incorporated its decision in the scheme as finally sanctioned by it. The Act does not seem to us to contemplate any change or alternation in the sanctioned scheme pursuant to any subsequent policy decision arrived at by the State Government as suggested on behalf of the appellants. There is accordingly no scope for the argument that the Government had arrived at a policy decision which was left to the Trust for implementation. In any event our attention was not drawn to any provision of the Act contemplating such a procedure for varying a sanctioned scheme by incorporating in it such a policy decision. Shri Gupte, however, relied on Section 43 of the Act for his submission that the Trust had full authority to alter the scheme between its sanction and execution and the Trust, according to this submission should have so altered the scheme as to carry out the policy decision of the State Government in order to give relief to the appellants. This section reads :"43. A scheme under this Act may be altered by the Trust at any time between its sanction by the State Government and its execution :Provided as follows -(a) if any alteration is estimated to increase the estimated net cost of executing a scheme by more than Rs. 50, 000 or twenty per cent. of such cost such alteration shall not be made without the previous sanction of the State Government;(b) if any alteration involves the acquisition, otherwise, than by agreement of any land the acquisition of which has not been sanctioned by the State Government the procedure prescribed in the foregoing sections of this chapter shall, so far as applicable, be followed as if the alteration were a separate scheme."10. It is an enabling provision which empowers the Trust to alter the scheme after its sanction but before its execution. It does not confer any right on persons like the appellants to demand alteration of a scheme in order to get their land exempted from acquisition. As observed by the High Court, the appellants lands were considered by the Trust to be essential for the scheme which is an integrated whole. Though a faint attempt was made to show that this observation is unjustified, in our view, no fault can be found with the view taken by the High Court. Now, if that be the position then it is not understood how the appellants can claim a right of compel the Trust to so alter the scheme as to exclude their land from acquisition. Acquisition of land included in a sanctioned scheme can be abandoned if it is discovered to be unnecessary as provided by Section 56 and if other conditions of that section are complied with. It is doubtful if Section 43 was intended to confer a wider power of excluding land from acquisition than conferred by Section 56. These two sections have to be read harmoniously and so read it is not easy to construe Section 43 as suggested on behalf of the appellants. However, without expressing any considered opinion on the scope and effect of this section we have no doubt that this section does not entitle the appellants to claim a right to the alteration of the scheme pursuant to any alleged policy decision of the State Government so as to exclude their orchards from the acquisition proceedings either under Section 43 or under Section 56 or claim exemption independently of these sections. This submission accordingly also fails.11. We have gone into the question of violation of Article 14 of the Constitution though in the High Courts judgment it was specifically stated that the learned counsel for the petitioners there had not urged the point of discrimination and the only point argued there was that the Trust was bound while acting in a quasi-judicial capacity to give reasons as to why the entire land belonging to the appellants was necessary for the execution of the scheme. Although in the High Courts judgment it is observed that the point of discrimination had not been urged in that Court we have gone into this question because, according to Shri Gupte, this was the main point on which the appellants relied for their claim and that it was not pursued because the High Court was not inclined to agree with it. The observation in the High Courts judgment, according to the learned counsel, was perhaps due to some misunderstanding. Before us the counsel urged this point as a pure point of law depending on the construction of the provisions of the Act.12. It was not seriously argued before us, and in our opinion, rightly so, that the Trust was bound to give reasons for holding as to why the entire land of the appellants was necessary for executing the scheme. There is no provision of the Act which imposes such an obligation on the Trust when coming to a decision under Section 56 and indeed in the High Court this point was conceded by the appellants.13. An attempt was also made by Shri Gupte to show by reference to a map that the land of the appellants and of those who were granted exemption were similarly located. We do not consider it necessary to go into that question : nor is it competent to this Court in these proceedings to go into such questions of fact. | 0[ds]4. In this Court to begin with, ShriGupte learned counsel for the appellants pressed his application CMP No. 1424 of 1971 under Order 47, Rule 6 of the Supreme Court Rules for the production of the agreement, dated April 8, 1964, between the trust and Akhara Brahim Buta, Amritsar through its Mahant Shri Bikram Das Chela Mahant Lachhaman Dass whereby the Improvement Trust agreed to exempt an area measuring 100 Kunals under anorchard. As there was no objection to the admission of this agreement on behalf of the respondents we allowed the application. ShriGupte then referred to the judgment of the High Court on Letters Patent appeal LPA 212 of 1967 (arising out of the earlier writ petition No. CW 1567 of 1967) and pointed out that the trust had not filed any return to that writ petition and that thus not controverted the appellants averments made therein : nor had the Trust produced the relevant record which it should have. It was accordingly pressed by Shri Gupte that the High Court on the previous occasion felt the weight of the appellants contention that in identical circumstances the lands of Baldev Inder Singh and Mahant Bikram Das under fruit orchards had been exempted whereas those of the appellants had been refused exemption.The High Court, it is however noteworthy, did not hold proved the appellants averments in that writ petition, even though uncontroverted, because the learned single Judge had not accepted those averments and further because : (i) in the appellants writ petition neither the impugned scheme had been reproduced nor had the plan showing the respective situations of the lands belonging to the appellants and to Mahant Bikram Das been produced, and (ii) it did not appear from the writ petition whether the exemption regarding Mahant Bikram Das had been granted under Section 56 of the Act or whether it had been granted under instructions from the Government or by the Trust as a result of its own independent decisions. It was in these circumstances that the Letters Patent appeal was allowed and reversing the decision of the learned Single Judge the Trust was directed to allow full opportunity of hearing to the appellants. It is also worth nothing that before the Letters Patent Bench the counsel for the Trust had conceded that the appellants case had not been properly considered by the Trust and the material facts necessary for deciding the controversy in the background suggested by the High Court were not on the record. In our view, the judgment of the High Court in the previous writ proceedings can be of no assistance to the appellants because all that was said by the High Court on the earlier occasion was that the appellants should be accorded full opportunity of hearing regarding their case for exemption. There is no considered decision on any controverial point which could be said to be binding on the parties on any material points requiring determination in the presentthe present case there is no finding that the acquisition of the appellants land has been discovered to be unnecessary for the execution of the scheme. Therefore, the appellants had no locus standi to invoke Section 56. The mere fact that exemption of land under orchard was granted to Mahant Bikram Das as alleged by the appellants, even assuming that exemption to be purporting to be under Section 56 of the Act, is no ground for exempting the appellants land under Section 56 when theof that sanction have not been complied with. Article 14 can by no means help the appellants for claiming exemption under Section 56 when the requirements of that section are not satisfied. Article 14 guarantees to all persons in our country equality before the law and equal protection of the laws which only means that all persons are equally subject to the law and have a right to equal protection in similar circumstances both as regards privileges conferred and liabilities imposed by the laws. In other words, equal laws have to be applied to all persons in the same situation and there must be no discrimination between one person and another if as regards theof the legislation their position is substantially the same. Section 56 does not suffer from any vice offending Article 14 and indeed it was not so contended by Shri Gupte. What was contended by him was that while administering Section 56 there has been hostile discrimination against the appellants because lands under orchards belonging to persons similarly placed have been exempted whereas the appellants have been refused exemption. No doubt, equal protection can be denied as much by the administration of a law as by legislation. But in the present case it is not possible to hold on the material on the record to which our attention was drawn that the case of Mahant Bikram Das was so similar in all essential particulars to that of the appellants that the act of granting exemption to his land has resulted in hostile discrimination against the appellants. In any event if the appellants have failed to bring their case within Section 56 of the Act then merely because some other party has erroneously succeeded in getting his lands exempted ostensibly under that section that by itself would not clothe the present appellants with a right to secure exemption for their lands. The rule of equality before the law or of the equal protection of the laws under Article 14 cannot be invoked in such a case.t then it was contended on behalf of the appellants with a certain amount of force that the policy decision of exempting lands under fully developed orchard arrived at by the State Government had to be administered without discrimination and if under that the decision Mahant Bikram Das was given the benefit of exempting his fruit orchards then refusal to extend the same exemption to the appellants is clearly violative of the fundamental right guaranteed to them by Article 14 of theConstitution. In our opinion, the argument is misconceived.8. To begin with we are not satisfied of the existence of any such police dictation as is suggested. Memorandum No.dated August 18, 1964, from the Secretary to Government, Punjab Local Government Department, to the Chairman, Improvement Trust, Amritsar indicating agreement with the recommendation of the Horticulture Department and advising the Trust not to acquire fully developed orchards does not seem to us to amount to any general policy decision authorised by the Act. It does not fall under any provision of the Act which would clothe the owners of the orchards to claim alteration of the scheme or abandonment of acquisition of their orchards. The scheme, it may be recalled, had been finally sanctioned by the State Government about six months earlier and our attention was not drawn to any provision of the Act which could justify any such policy decision after the final sanction of the scheme which could vest in the appellants a right to claim exemption of their orchards from the acquisition of land. It also seems to us doubtful if there can be any subsequent policy decision in the matter of development and expansion scheme after it is sanction under Chapter IV of the Act. A close examination of this Chapter shows that when a scheme is framed pursuant to official representation by the Municipal Committee or otherwise as contemplated by Section 33 and compliance with Section 34 and 35 of the Act, the Trust has to prepare a notice under Section 36 pursuant to which objections are41 empowers the State Government to sanction the scheme with or without modification or to refuse the sanction or to return it for reconsideration. But a modified scheme afteris required again to be republished under Section 36. It is thereafter that a scheme is sanctioned and notified by the State Government. The provisions of Chapter IV clearly disclose a keen anxiety on the party of theto see that all possible objections to the scheme are fully considered before its final sanction. It appears that any policy decisions, arrived at by the State Government for excluding from the scheme, lands under orchards, would have been considered by the State Government before finally sanctioning the scheme. There was ample opportunity for that purpose. The owners of the orchards were expected to have moved in time and the State Government could also have incorporated its decision in the scheme as finally sanctioned by it. The Act does not seem to us to contemplate any change or alternation in the sanctioned scheme pursuant to any subsequent policy decision arrived at by the State Government as suggested on behalf of the appellants. There is accordingly no scope for the argument that the Government had arrived at a policy decision which was left to the Trust for implementation. In any event our attention was not drawn to any provision of the Act contemplating such a procedure for varying a sanctioned scheme by incorporating in it such a policy decision.It is an enabling provision which empowers the Trust to alter the scheme after its sanction but before its execution. It does not confer any right on persons like the appellants to demand alteration of a scheme in order to get their land exempted from acquisition. As observed by the High Court, the appellants lands were considered by the Trust to be essential for the scheme which is an integrated whole. Though a faint attempt was made to show that this observation is unjustified, in our view, no fault can be found with the view taken by the High Court. Now, if that be the position then it is not understood how the appellants can claim a right of compel the Trust to so alter the scheme as to exclude their land from acquisition. Acquisition of land included in a sanctioned scheme can be abandoned if it is discovered to be unnecessary as provided by Section 56 and if other conditions of that section are complied with. It is doubtful if Section 43 was intended to confer a wider power of excluding land from acquisition than conferred by Section 56. These two sections have to be read harmoniously and so read it is not easy to construe Section 43 as suggested on behalf of the appellants. However, without expressing any considered opinion on the scope and effect of this section we have no doubt that this section does not entitle the appellants to claim a right to the alteration of the scheme pursuant to any alleged policy decision of the State Government so as to exclude their orchards from the acquisition proceedings either under Section 43 or under Section 56 or claim exemption independently of these sections. This submission accordingly also fails.11. We have gone into the question of violation of Article 14 of the Constitution though in the High Courts judgment it was specifically stated that the learned counsel for the petitioners there had not urged the point of discrimination and the only point argued there was that the Trust was bound while acting in acapacity to give reasons as to why the entire land belonging to the appellants was necessary for the execution of the scheme. Althoughin the High Courts judgment it is observed that the point of discrimination had not been urged in that Court we have gone into this question because, according to Shri Gupte, this was the main point on which the appellants relied for their claim and that it was not pursued because the High Court was not inclined to agree with it. The observation in the High Courts judgment, according to the learned counsel, was perhaps due to some misunderstanding. Before us the counsel urged this point as a pure point of law depending on the construction of the provisions of the Act.It was not seriously argued before us, and in our opinion, rightly so, that the Trust was bound to give reasons for holding as to why the entire land of the appellants was necessary for executing the scheme. There is no provision of the Act which imposes such an obligation on the Trust when coming to a decision under Section 56 and indeed in the High Court this point was conceded by the appellants.13. An attempt was also made by Shri Gupte to show by reference to a map that the land of the appellants and of those who were granted exemption were similarly located. We do not consider it necessary to go into that question : nor is it competent to this Court in these proceedings to go into such questions of fact. | 0 | 5,927 | 2,207 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
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36. It is thereafter that a scheme is sanctioned and notified by the State Government. The provisions of Chapter IV clearly disclose a keen anxiety on the party of the law-makers to see that all possible objections to the scheme are fully considered before its final sanction. It appears that any policy decisions, arrived at by the State Government for excluding from the scheme, lands under orchards, would have been considered by the State Government before finally sanctioning the scheme. There was ample opportunity for that purpose. The owners of the orchards were expected to have moved in time and the State Government could also have incorporated its decision in the scheme as finally sanctioned by it. The Act does not seem to us to contemplate any change or alternation in the sanctioned scheme pursuant to any subsequent policy decision arrived at by the State Government as suggested on behalf of the appellants. There is accordingly no scope for the argument that the Government had arrived at a policy decision which was left to the Trust for implementation. In any event our attention was not drawn to any provision of the Act contemplating such a procedure for varying a sanctioned scheme by incorporating in it such a policy decision. Shri Gupte, however, relied on Section 43 of the Act for his submission that the Trust had full authority to alter the scheme between its sanction and execution and the Trust, according to this submission should have so altered the scheme as to carry out the policy decision of the State Government in order to give relief to the appellants. This section reads :"43. A scheme under this Act may be altered by the Trust at any time between its sanction by the State Government and its execution :Provided as follows -(a) if any alteration is estimated to increase the estimated net cost of executing a scheme by more than Rs. 50, 000 or twenty per cent. of such cost such alteration shall not be made without the previous sanction of the State Government;(b) if any alteration involves the acquisition, otherwise, than by agreement of any land the acquisition of which has not been sanctioned by the State Government the procedure prescribed in the foregoing sections of this chapter shall, so far as applicable, be followed as if the alteration were a separate scheme."10. It is an enabling provision which empowers the Trust to alter the scheme after its sanction but before its execution. It does not confer any right on persons like the appellants to demand alteration of a scheme in order to get their land exempted from acquisition. As observed by the High Court, the appellants lands were considered by the Trust to be essential for the scheme which is an integrated whole. Though a faint attempt was made to show that this observation is unjustified, in our view, no fault can be found with the view taken by the High Court. Now, if that be the position then it is not understood how the appellants can claim a right of compel the Trust to so alter the scheme as to exclude their land from acquisition. Acquisition of land included in a sanctioned scheme can be abandoned if it is discovered to be unnecessary as provided by Section 56 and if other conditions of that section are complied with. It is doubtful if Section 43 was intended to confer a wider power of excluding land from acquisition than conferred by Section 56. These two sections have to be read harmoniously and so read it is not easy to construe Section 43 as suggested on behalf of the appellants. However, without expressing any considered opinion on the scope and effect of this section we have no doubt that this section does not entitle the appellants to claim a right to the alteration of the scheme pursuant to any alleged policy decision of the State Government so as to exclude their orchards from the acquisition proceedings either under Section 43 or under Section 56 or claim exemption independently of these sections. This submission accordingly also fails.11. We have gone into the question of violation of Article 14 of the Constitution though in the High Courts judgment it was specifically stated that the learned counsel for the petitioners there had not urged the point of discrimination and the only point argued there was that the Trust was bound while acting in a quasi-judicial capacity to give reasons as to why the entire land belonging to the appellants was necessary for the execution of the scheme. Although in the High Courts judgment it is observed that the point of discrimination had not been urged in that Court we have gone into this question because, according to Shri Gupte, this was the main point on which the appellants relied for their claim and that it was not pursued because the High Court was not inclined to agree with it. The observation in the High Courts judgment, according to the learned counsel, was perhaps due to some misunderstanding. Before us the counsel urged this point as a pure point of law depending on the construction of the provisions of the Act.12. It was not seriously argued before us, and in our opinion, rightly so, that the Trust was bound to give reasons for holding as to why the entire land of the appellants was necessary for executing the scheme. There is no provision of the Act which imposes such an obligation on the Trust when coming to a decision under Section 56 and indeed in the High Court this point was conceded by the appellants.13. An attempt was also made by Shri Gupte to show by reference to a map that the land of the appellants and of those who were granted exemption were similarly located. We do not consider it necessary to go into that question : nor is it competent to this Court in these proceedings to go into such questions of fact.
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scheme or abandonment of acquisition of their orchards. The scheme, it may be recalled, had been finally sanctioned by the State Government about six months earlier and our attention was not drawn to any provision of the Act which could justify any such policy decision after the final sanction of the scheme which could vest in the appellants a right to claim exemption of their orchards from the acquisition of land. It also seems to us doubtful if there can be any subsequent policy decision in the matter of development and expansion scheme after it is sanction under Chapter IV of the Act. A close examination of this Chapter shows that when a scheme is framed pursuant to official representation by the Municipal Committee or otherwise as contemplated by Section 33 and compliance with Section 34 and 35 of the Act, the Trust has to prepare a notice under Section 36 pursuant to which objections are41 empowers the State Government to sanction the scheme with or without modification or to refuse the sanction or to return it for reconsideration. But a modified scheme afteris required again to be republished under Section 36. It is thereafter that a scheme is sanctioned and notified by the State Government. The provisions of Chapter IV clearly disclose a keen anxiety on the party of theto see that all possible objections to the scheme are fully considered before its final sanction. It appears that any policy decisions, arrived at by the State Government for excluding from the scheme, lands under orchards, would have been considered by the State Government before finally sanctioning the scheme. There was ample opportunity for that purpose. The owners of the orchards were expected to have moved in time and the State Government could also have incorporated its decision in the scheme as finally sanctioned by it. The Act does not seem to us to contemplate any change or alternation in the sanctioned scheme pursuant to any subsequent policy decision arrived at by the State Government as suggested on behalf of the appellants. There is accordingly no scope for the argument that the Government had arrived at a policy decision which was left to the Trust for implementation. In any event our attention was not drawn to any provision of the Act contemplating such a procedure for varying a sanctioned scheme by incorporating in it such a policy decision.It is an enabling provision which empowers the Trust to alter the scheme after its sanction but before its execution. It does not confer any right on persons like the appellants to demand alteration of a scheme in order to get their land exempted from acquisition. As observed by the High Court, the appellants lands were considered by the Trust to be essential for the scheme which is an integrated whole. Though a faint attempt was made to show that this observation is unjustified, in our view, no fault can be found with the view taken by the High Court. Now, if that be the position then it is not understood how the appellants can claim a right of compel the Trust to so alter the scheme as to exclude their land from acquisition. Acquisition of land included in a sanctioned scheme can be abandoned if it is discovered to be unnecessary as provided by Section 56 and if other conditions of that section are complied with. It is doubtful if Section 43 was intended to confer a wider power of excluding land from acquisition than conferred by Section 56. These two sections have to be read harmoniously and so read it is not easy to construe Section 43 as suggested on behalf of the appellants. However, without expressing any considered opinion on the scope and effect of this section we have no doubt that this section does not entitle the appellants to claim a right to the alteration of the scheme pursuant to any alleged policy decision of the State Government so as to exclude their orchards from the acquisition proceedings either under Section 43 or under Section 56 or claim exemption independently of these sections. This submission accordingly also fails.11. We have gone into the question of violation of Article 14 of the Constitution though in the High Courts judgment it was specifically stated that the learned counsel for the petitioners there had not urged the point of discrimination and the only point argued there was that the Trust was bound while acting in acapacity to give reasons as to why the entire land belonging to the appellants was necessary for the execution of the scheme. Althoughin the High Courts judgment it is observed that the point of discrimination had not been urged in that Court we have gone into this question because, according to Shri Gupte, this was the main point on which the appellants relied for their claim and that it was not pursued because the High Court was not inclined to agree with it. The observation in the High Courts judgment, according to the learned counsel, was perhaps due to some misunderstanding. Before us the counsel urged this point as a pure point of law depending on the construction of the provisions of the Act.It was not seriously argued before us, and in our opinion, rightly so, that the Trust was bound to give reasons for holding as to why the entire land of the appellants was necessary for executing the scheme. There is no provision of the Act which imposes such an obligation on the Trust when coming to a decision under Section 56 and indeed in the High Court this point was conceded by the appellants.13. An attempt was also made by Shri Gupte to show by reference to a map that the land of the appellants and of those who were granted exemption were similarly located. We do not consider it necessary to go into that question : nor is it competent to this Court in these proceedings to go into such questions of fact.
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Ahmedabad Pvt.Primary Teachers' Asson Vs. Administrative Officer | 1972, is that such non-teaching staff of educational institutions as answer the description of any of the employments contained in the definition Clause 2(e), would be covered by the provisions of the Act. The teaching staff being not covered by the definition of ‘employee’ can get no advantage merely because by notification ‘educational institutions’ as establishments are covered by the provisions of the Act. 20. Having thus compared the various defintion clauses of word ‘employee’ in different enactments, with due regard to the different aims and objects of the various labour legislations, we are of the view that even on plain construction of the words and expression used in definition Clause 2(e) of the Act, ‘teachers’ who are mainly employed for imparting education are not intended to be covered for extending gratuity benefits under the Act. Teachers do not answer description of being employees who are ‘skilled’, ‘semi-skilled’ or ‘unskilled’. These three words used in association with each other intend to convey that a person who is ‘unskilled’ is one who is not ‘skilled’ and a person who is ‘semi-skilled’ may be one who falls between two categories meaning he is neither fully skilled nor unskilled. The Black’s Law Dictionary defines these three words as under : “Semi-skilled work—Work that may require some alertness and close attention, such as inspecting items or machinery for irregularities, or guarding property or people against loss or injury.Skilled work—Work requiring the worker to use judgment, deal with the public, analyse facts and figures, or work with abstract ideas at a high level of complexity.Unskilled work—Work requiring little or no judgment, and involving simple tasks that can be learned quickly on the job" 21. In construing the above mentioned three words which are used in association with each other, the rule of construction noscitur a soclls may be applied. The meaning of each of these words is to be understood by the company it keeps. It is a legitimate rule of construction to construe words in an Act of Parliament with reference to words found in immediate connection with them. The actual order of these three words in juxtaposition indicates that meaning of one takes colour from the other. The rule is explained differently : ‘that meaning of doubtful words may be ascertained by reference to the meaning of words associated with it’. [See Principles of Statutory Interpretation by Justice G.P. Singh (8th Ed.), Syn. 8 at pg. 379]. 22. The word ‘unskilled’ is opposite of the word ‘skilled’ and the word ‘semi-skilled’ seems to describe a person who falls between the two categories i.e. he is not fully skilled and also is not completely unskilled but has some amount of skill for the work for which he is employed. The word ‘unskilled’ cannot, therefore, be understood dissociated from the word ‘skilled’ and ‘semi-skilled’ to read and construe it to include in it all categories of employees irrespective of the nature of employment. If the Legislature intended to cover all categories of employees for extending benefit of gratuity under the Act, specific mention of categories of employment in the definition clause was not necessary at all. Any construction of definition clause which renders it superfluous or otiose has to be avoided. 23. The contention advanced that teachers should be treated as included in expression ‘unskilled’ or ‘skilled’ cannot, therefore, be accepted. The teachers might have been imparted training for teaching or there may be cases where teachers who are employed in primary schools are untrained. A trained teacher is not described in industrial field or service jurisprudence as a ‘skilled employee’. Such adjective generally is used for employee doing manual or technical work. Similarly, the words ‘semi-skilled’ and ‘unskilled’ are not understood in educational establishments as describing nature of job of untrained teachers. We do not attach much importance to the arguments advanced on the question as to whether ‘skilled’, ‘semi-skilled’ and ‘unskilled’ qualify the words ‘manual’, ‘supervisory’, ‘technical’ or ‘clerical’ or the above words qualify the word ‘work’. Even if all the words are read disjunctively or in any other manner, trained or untrained teachers do not plainly answer any of the descriptions of the nature of various employments given in the definition clause. Trained or untrained teachers are not ‘skilled’, ‘semi-skilled’, ‘unskilled’, ‘manual’, ‘supervisory’, ‘technical’ or ‘clerical’ employees. They are also not employed in ‘managerial’ or ‘administrative’ capacity. Occasionally, even if they do some administrative work as part of their duty with teaching, since their main job is imparting education, they cannot be held employed in `managerial’ or ‘administrative’ capacity. The teachers are clearly not intended to be covered by the definition of ‘employee’. 24. The Legislature was alive to various kinds of definitions of word ‘employee’ contained in various previous labour enactments when the Act was passed in 1972. If it intended to cover in the definition of ‘employee’ all kinds of employees, it could have as well used such wide language as is contained in Section 2(f) of the Employees’ Provident Funds Act, 1952 which defines ‘employee’ to mean ‘any person who is employed for wages in any kind of work, manual or otherwise, in or in connection with the work of [an establishment]’ ..... Non-use of such wide language in the definition of ‘employee’ in Section 2(e) of the Act of 1972 reinforces our conclusion that teachers are clearly not covered in the definition. 25. Our conclusion should not be misunderstood that teachers although engaged in very noble profession of educating our young generation should not be given any gratuity benefit. There are already in several States separate statutes, rules and regulations granting gratuity benefits to teachers in educational institutions which are more or less beneficial than the gratuity benefits provided under the Act. It is for the Legislature to take cognizance of situation of such teachers in various establishments where gratuity benefits are not available and think of a separate legislation for them in this regard. That is the subject matter solely of the Legislature to consider and decide. | 0[ds]19. An educational institution, therefore, is annotified under Section 1(3)(c) of the Payment of Gratuity Act, 1972. On behalf of the Municipal Corporation, it is contended that the only beneficial effect of the Notification issued under Section 1(3)(c) of the Act of 1972, is that such non-teaching staff of educational institutions as answer the description of any of the employments contained in the definition Clause 2(e), would be covered by the provisions of the Act. The teaching staff being not covered by the definition ofcan get no advantage merely because by notification ‘educationalas establishments are covered by the provisions of the Act.The contention advanced that teachers should be treated as included in expressioncannot, therefore, be accepted. The teachers might have been imparted training for teaching or there may be cases where teachers who are employed in primary schools are untrained. A trained teacher is not described in industrial field or service jurisprudence as a ‘skilledSuch adjective generally is used for employee doing manual or technical work. Similarly, the wordsare not understood in educational establishments as describing nature of job of untrained teachers. We do not attach much importance to the arguments advanced on the question as to whetherqualify the wordsor the above words qualify the wordEven if all the words are read disjunctively or in any other manner, trained or untrained teachers do not plainly answer any of the descriptions of the nature of various employments given in the definition clause. Trained or untrained teachers are notemployees. They are also not employed incapacity. Occasionally, even if they do some administrative work as part of their duty with teaching, since their main job is imparting education, they cannot be held employed inOur conclusion should not be misunderstood that teachers although engaged in very noble profession of educating our young generation should not be given any gratuity benefit. There are already in several States separate statutes, rules and regulations granting gratuity benefits to teachers in educational institutions which are more or less beneficial than the gratuity benefits provided under the Act. It is for the Legislature to take cognizance of situation of such teachers in various establishments where gratuity benefits are not available and think of a separate legislation for them in this regard. That is the subject matter solely of the Legislature to consider and decide. | 0 | 4,429 | 435 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
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1972, is that such non-teaching staff of educational institutions as answer the description of any of the employments contained in the definition Clause 2(e), would be covered by the provisions of the Act. The teaching staff being not covered by the definition of ‘employee’ can get no advantage merely because by notification ‘educational institutions’ as establishments are covered by the provisions of the Act. 20. Having thus compared the various defintion clauses of word ‘employee’ in different enactments, with due regard to the different aims and objects of the various labour legislations, we are of the view that even on plain construction of the words and expression used in definition Clause 2(e) of the Act, ‘teachers’ who are mainly employed for imparting education are not intended to be covered for extending gratuity benefits under the Act. Teachers do not answer description of being employees who are ‘skilled’, ‘semi-skilled’ or ‘unskilled’. These three words used in association with each other intend to convey that a person who is ‘unskilled’ is one who is not ‘skilled’ and a person who is ‘semi-skilled’ may be one who falls between two categories meaning he is neither fully skilled nor unskilled. The Black’s Law Dictionary defines these three words as under : “Semi-skilled work—Work that may require some alertness and close attention, such as inspecting items or machinery for irregularities, or guarding property or people against loss or injury.Skilled work—Work requiring the worker to use judgment, deal with the public, analyse facts and figures, or work with abstract ideas at a high level of complexity.Unskilled work—Work requiring little or no judgment, and involving simple tasks that can be learned quickly on the job" 21. In construing the above mentioned three words which are used in association with each other, the rule of construction noscitur a soclls may be applied. The meaning of each of these words is to be understood by the company it keeps. It is a legitimate rule of construction to construe words in an Act of Parliament with reference to words found in immediate connection with them. The actual order of these three words in juxtaposition indicates that meaning of one takes colour from the other. The rule is explained differently : ‘that meaning of doubtful words may be ascertained by reference to the meaning of words associated with it’. [See Principles of Statutory Interpretation by Justice G.P. Singh (8th Ed.), Syn. 8 at pg. 379]. 22. The word ‘unskilled’ is opposite of the word ‘skilled’ and the word ‘semi-skilled’ seems to describe a person who falls between the two categories i.e. he is not fully skilled and also is not completely unskilled but has some amount of skill for the work for which he is employed. The word ‘unskilled’ cannot, therefore, be understood dissociated from the word ‘skilled’ and ‘semi-skilled’ to read and construe it to include in it all categories of employees irrespective of the nature of employment. If the Legislature intended to cover all categories of employees for extending benefit of gratuity under the Act, specific mention of categories of employment in the definition clause was not necessary at all. Any construction of definition clause which renders it superfluous or otiose has to be avoided. 23. The contention advanced that teachers should be treated as included in expression ‘unskilled’ or ‘skilled’ cannot, therefore, be accepted. The teachers might have been imparted training for teaching or there may be cases where teachers who are employed in primary schools are untrained. A trained teacher is not described in industrial field or service jurisprudence as a ‘skilled employee’. Such adjective generally is used for employee doing manual or technical work. Similarly, the words ‘semi-skilled’ and ‘unskilled’ are not understood in educational establishments as describing nature of job of untrained teachers. We do not attach much importance to the arguments advanced on the question as to whether ‘skilled’, ‘semi-skilled’ and ‘unskilled’ qualify the words ‘manual’, ‘supervisory’, ‘technical’ or ‘clerical’ or the above words qualify the word ‘work’. Even if all the words are read disjunctively or in any other manner, trained or untrained teachers do not plainly answer any of the descriptions of the nature of various employments given in the definition clause. Trained or untrained teachers are not ‘skilled’, ‘semi-skilled’, ‘unskilled’, ‘manual’, ‘supervisory’, ‘technical’ or ‘clerical’ employees. They are also not employed in ‘managerial’ or ‘administrative’ capacity. Occasionally, even if they do some administrative work as part of their duty with teaching, since their main job is imparting education, they cannot be held employed in `managerial’ or ‘administrative’ capacity. The teachers are clearly not intended to be covered by the definition of ‘employee’. 24. The Legislature was alive to various kinds of definitions of word ‘employee’ contained in various previous labour enactments when the Act was passed in 1972. If it intended to cover in the definition of ‘employee’ all kinds of employees, it could have as well used such wide language as is contained in Section 2(f) of the Employees’ Provident Funds Act, 1952 which defines ‘employee’ to mean ‘any person who is employed for wages in any kind of work, manual or otherwise, in or in connection with the work of [an establishment]’ ..... Non-use of such wide language in the definition of ‘employee’ in Section 2(e) of the Act of 1972 reinforces our conclusion that teachers are clearly not covered in the definition. 25. Our conclusion should not be misunderstood that teachers although engaged in very noble profession of educating our young generation should not be given any gratuity benefit. There are already in several States separate statutes, rules and regulations granting gratuity benefits to teachers in educational institutions which are more or less beneficial than the gratuity benefits provided under the Act. It is for the Legislature to take cognizance of situation of such teachers in various establishments where gratuity benefits are not available and think of a separate legislation for them in this regard. That is the subject matter solely of the Legislature to consider and decide.
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19. An educational institution, therefore, is annotified under Section 1(3)(c) of the Payment of Gratuity Act, 1972. On behalf of the Municipal Corporation, it is contended that the only beneficial effect of the Notification issued under Section 1(3)(c) of the Act of 1972, is that such non-teaching staff of educational institutions as answer the description of any of the employments contained in the definition Clause 2(e), would be covered by the provisions of the Act. The teaching staff being not covered by the definition ofcan get no advantage merely because by notification ‘educationalas establishments are covered by the provisions of the Act.The contention advanced that teachers should be treated as included in expressioncannot, therefore, be accepted. The teachers might have been imparted training for teaching or there may be cases where teachers who are employed in primary schools are untrained. A trained teacher is not described in industrial field or service jurisprudence as a ‘skilledSuch adjective generally is used for employee doing manual or technical work. Similarly, the wordsare not understood in educational establishments as describing nature of job of untrained teachers. We do not attach much importance to the arguments advanced on the question as to whetherqualify the wordsor the above words qualify the wordEven if all the words are read disjunctively or in any other manner, trained or untrained teachers do not plainly answer any of the descriptions of the nature of various employments given in the definition clause. Trained or untrained teachers are notemployees. They are also not employed incapacity. Occasionally, even if they do some administrative work as part of their duty with teaching, since their main job is imparting education, they cannot be held employed inOur conclusion should not be misunderstood that teachers although engaged in very noble profession of educating our young generation should not be given any gratuity benefit. There are already in several States separate statutes, rules and regulations granting gratuity benefits to teachers in educational institutions which are more or less beneficial than the gratuity benefits provided under the Act. It is for the Legislature to take cognizance of situation of such teachers in various establishments where gratuity benefits are not available and think of a separate legislation for them in this regard. That is the subject matter solely of the Legislature to consider and decide.
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Union Of India Vs. M/S Neelam Engineering & Contruction Co | about the filing of the Award. This Court went on to say that notice did not necessarily contemplate communication in writing. The expression "give notice" in Sub-Section (2) of Section 14 of the 1940 Act simply means giving intimation of the filing of the Award. Such intimation need not be given in writing and could be communicated orally and that the same would amount to service of notice when no particular mode of service was prescribed. 13. Mr. Mahabir Singh also referred to the decision of this Court in Secretary to Government of Karnataka & Anr. vs. V. Harishbabu [(1996) 5 SCC 400] , wherein also it was emphasized that in the absence of any formal mode of service, notice need not be in writing and may also be given orally. What was essential was that notice or intimation or a communication of filing of the Award would have to be issued by the Court to the parties and served upon them. It was also held that the period of limitation for filing objections seeking the setting aside of an arbitration Award commenced from the date of service of notice issued by the Court upon the parties regarding the fling of the Award under Section 14(2) of the Act. The issuance of such notice by the Court is a mandatory requirement and limitation would begin only after notice of the filing of the Award is given by the Court. 14. Mr. Mahabir Singh, learned counsel, referred to a decision of the Bombay High Court in Ratanji Virpal & Co. vs. Dhirajlal Manilal [AIR 1942 Bom. 101 ], where a similar question had fallen for consideration of the learned Judge. While considering the provisions of Sections 14 and 31 of the Arbitration Act, 1940, the Court held that till an Award was filed in Court, no application could be filed for setting aside the same. While holding as above, the High Court took into consideration the amendment in Schedule I of the Limitation Act, 1908, where Article 158 was substituted with a new Article which provided that under the 1940 Act, to set aside an Award or to get an Award remitted for reconsideration, the period of limitation is 30 days from the date of service of notice of filing of the Award. The Bombay High Court held that in amending the Limitation Act, the legislature contemplated that an application for setting aside the Award could only be made after the date of service of notice of filing of the Award and, therefore, the limitation of 30 days is fixed after that particular date. The Court ultimately held that it was not competent for a party to the arbitration Award to file a petition for setting aside the Award till the Award had been filed. Mr. Singh submitted that having regard to the views expressed in the aforesaid judgment and having particular regard to the provisions of Article 119 of the Limitation Act, 1963, where limitation for making an application under the 1940 Act for setting aside an Award has been fixed as 30 days from the date of service of notice of the filing of the Award, the question of filing an objection under Sections 30 and 33 of the said Act prior to the filing of the Award, did not arise. Mr. Singh submitted that the appeal was without merit and was liable to be dismissed. 15. We have carefully considered the submissions made on behalf of the Appellants and though they appear to be attractive, we are unable to accept the same. 16. In view of Section 19 of the Limitation Act, 1963, the period of limitation for filing an application commences only after the date of service of the notice of the making of the Award. The raison detre for filing objection under Sections 30 and 33 of the Arbitration Act, 1940, is the Award which has to be filed in Court either by the Arbitrator or at the instance of any of the parties requiring the Arbitrator to do so. Even the Court may direct the Arbitrator to file his Award on the application made by any of the parties thereto. Filing an objection against something which did not exist on the date when the objection was filed is unacceptable and must be rejected. All the decisions cited by Mr. Mahabir Singh take a similar view. The objections filed under Sections 30 and 33 of the Arbitration Act, 1940, by the Appellants herein, therefore, have been rightly held to be pre-mature and could not be treated to be an objection filed after the filing of the Award. While the original Award was filed in Court on 27th May, 1998, the objections filed under Sections 30 and 33 of the Arbitration Act, 1940, for setting aside the Award was filed on 3rd January, 1998. There was, therefore, no occasion for such an objection to be filed in terms of Article 119 of the Limitation Act, 1963. 17. The objection filed by the Appellant under Sections 30 and 33 of the Arbitration Act, 1940, for setting aside the Award on 3rd January, 1998, was obviously on account of the fact that the Respondent had filed a petition in the Civil Court on 27th February, 1996, for making the Award a Rule of Court. At the time when the objection was filed, it was noted on 18th February, 1998, that the Award had not been received in Court and notice was issued to the Arbitrator to file the original Award in pursuance whereof the original Award was filed in Court on 27th May, 1998. 18. It is unfortunate that although the Appellants filed their objection under Sections 30 and 33 of the Arbitration Act, 1940, the same was done prematurely even before the filing of the Award and such objection could not be treated as a valid objection under Sections 30 and 33 of the Act in view of the provisions of Article 119 of the Limitation Act, 1963. | 0[ds]18. It is unfortunate that although the Appellants filed their objection under Sections 30 and 33 of the Arbitration Act, 1940, the same was done prematurely even before the filing of the Award and such objection could not be treated as a valid objection under Sections 30 and 33 of the Act in view of the provisions of Article 119 of the Limitation Act, 1963 | 0 | 3,192 | 73 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
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about the filing of the Award. This Court went on to say that notice did not necessarily contemplate communication in writing. The expression "give notice" in Sub-Section (2) of Section 14 of the 1940 Act simply means giving intimation of the filing of the Award. Such intimation need not be given in writing and could be communicated orally and that the same would amount to service of notice when no particular mode of service was prescribed. 13. Mr. Mahabir Singh also referred to the decision of this Court in Secretary to Government of Karnataka & Anr. vs. V. Harishbabu [(1996) 5 SCC 400] , wherein also it was emphasized that in the absence of any formal mode of service, notice need not be in writing and may also be given orally. What was essential was that notice or intimation or a communication of filing of the Award would have to be issued by the Court to the parties and served upon them. It was also held that the period of limitation for filing objections seeking the setting aside of an arbitration Award commenced from the date of service of notice issued by the Court upon the parties regarding the fling of the Award under Section 14(2) of the Act. The issuance of such notice by the Court is a mandatory requirement and limitation would begin only after notice of the filing of the Award is given by the Court. 14. Mr. Mahabir Singh, learned counsel, referred to a decision of the Bombay High Court in Ratanji Virpal & Co. vs. Dhirajlal Manilal [AIR 1942 Bom. 101 ], where a similar question had fallen for consideration of the learned Judge. While considering the provisions of Sections 14 and 31 of the Arbitration Act, 1940, the Court held that till an Award was filed in Court, no application could be filed for setting aside the same. While holding as above, the High Court took into consideration the amendment in Schedule I of the Limitation Act, 1908, where Article 158 was substituted with a new Article which provided that under the 1940 Act, to set aside an Award or to get an Award remitted for reconsideration, the period of limitation is 30 days from the date of service of notice of filing of the Award. The Bombay High Court held that in amending the Limitation Act, the legislature contemplated that an application for setting aside the Award could only be made after the date of service of notice of filing of the Award and, therefore, the limitation of 30 days is fixed after that particular date. The Court ultimately held that it was not competent for a party to the arbitration Award to file a petition for setting aside the Award till the Award had been filed. Mr. Singh submitted that having regard to the views expressed in the aforesaid judgment and having particular regard to the provisions of Article 119 of the Limitation Act, 1963, where limitation for making an application under the 1940 Act for setting aside an Award has been fixed as 30 days from the date of service of notice of the filing of the Award, the question of filing an objection under Sections 30 and 33 of the said Act prior to the filing of the Award, did not arise. Mr. Singh submitted that the appeal was without merit and was liable to be dismissed. 15. We have carefully considered the submissions made on behalf of the Appellants and though they appear to be attractive, we are unable to accept the same. 16. In view of Section 19 of the Limitation Act, 1963, the period of limitation for filing an application commences only after the date of service of the notice of the making of the Award. The raison detre for filing objection under Sections 30 and 33 of the Arbitration Act, 1940, is the Award which has to be filed in Court either by the Arbitrator or at the instance of any of the parties requiring the Arbitrator to do so. Even the Court may direct the Arbitrator to file his Award on the application made by any of the parties thereto. Filing an objection against something which did not exist on the date when the objection was filed is unacceptable and must be rejected. All the decisions cited by Mr. Mahabir Singh take a similar view. The objections filed under Sections 30 and 33 of the Arbitration Act, 1940, by the Appellants herein, therefore, have been rightly held to be pre-mature and could not be treated to be an objection filed after the filing of the Award. While the original Award was filed in Court on 27th May, 1998, the objections filed under Sections 30 and 33 of the Arbitration Act, 1940, for setting aside the Award was filed on 3rd January, 1998. There was, therefore, no occasion for such an objection to be filed in terms of Article 119 of the Limitation Act, 1963. 17. The objection filed by the Appellant under Sections 30 and 33 of the Arbitration Act, 1940, for setting aside the Award on 3rd January, 1998, was obviously on account of the fact that the Respondent had filed a petition in the Civil Court on 27th February, 1996, for making the Award a Rule of Court. At the time when the objection was filed, it was noted on 18th February, 1998, that the Award had not been received in Court and notice was issued to the Arbitrator to file the original Award in pursuance whereof the original Award was filed in Court on 27th May, 1998. 18. It is unfortunate that although the Appellants filed their objection under Sections 30 and 33 of the Arbitration Act, 1940, the same was done prematurely even before the filing of the Award and such objection could not be treated as a valid objection under Sections 30 and 33 of the Act in view of the provisions of Article 119 of the Limitation Act, 1963.
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18. It is unfortunate that although the Appellants filed their objection under Sections 30 and 33 of the Arbitration Act, 1940, the same was done prematurely even before the filing of the Award and such objection could not be treated as a valid objection under Sections 30 and 33 of the Act in view of the provisions of Article 119 of the Limitation Act, 1963
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Pioneer Motors Private Ltd. & Others Vs. Municipal Council, Nagercoil | that clear one months notice was necessary to be given, that is, both the first day and the last day of the month had to be excluded. To put it in the language used by Maxwell on Interpretation of Statutes, 10th Edition, p. 351:-"When..............." not less than" so many days are to intervene, both the terminal days are excluded from the computation."That does not seem to have been done in the present case. But in order to decide whether this portion of the proviso is a mandatory provision, it is convenient to see the object for which it has been enacted. Under S. 78, the procedure is laid down for the levying of a new tax, which has to be done by a resolution. But in the proviso, it is stated that before such a resolution can be passed, a notice to that effect has to be published in the official gazette and also in one Malyalam or Tamil newspaper having circulation within the municipality. Then comes the period for inviting objections. The object of notifying in the Gazette and Local Newspaper is both to give notice to the public and particularly to the persons who are likely to be taxed and to invite their objections. For this purpose, the proviso requires a reasonable period of not less than one month to be given. The object of the provision is to give reasonable time and opportunity and it is given as a guidance that reasonable time would be a month. The use of the words "reasonable period" before the words "not being less than one month" is significant. If sufficient time has been given for the invitation of the objections which only just falls short of the period mentioned in the proviso, then it would serve the object of the legislature. The provision in regard to time in the context must be held to be directory and not mandatory.9. The cases under the Income Tax Act like the Commissioner of Income Tax v. Ekbal and Co., 1945-13 ITR 154: (AIR 1945 Bom 316 ) where the notice under S. 22 (2) of the Income-tax Act (which requires the furnishing of a return within suck period not being less than thirty days) of 30 days only was held to be bad, because it was not a notice of thirty clear days, were so decided because that notice is the basis of the jurisdiction to tax and a legal notice is an obligation imposed in order to tax an individual and it is a mandatory provision. Similarly, cases under Rent Act will also not apply. In Thompson v. Stimpson, 1960-3 All ER 500 the law required that not less than four weeks notice shall be given for vacation of premises on a weekly tenancy and only one weeks time was given. It was held there that it was a bad notice. It was further held that four weeks notice was a condition precedent and the words had been used which had been interpreted in the past as providing for four clear weeks and also it was construed as four clear weeks, so that there might be certainty in the matter. In other cases, that were relied upon and which related to taxing statutes, the Municipal Council, Cuddapah v. M. and S. M. Rly. Co., Ltd., ILR 52 Mad 779: (AIR 1929 Mad 746 ); Borough Municipality of Amalner v. Pratap Spinning Weaving and Manufacturing Co. Ltd., Amalner, ILR (1952) Bom 918: (AIR 1932 Bom 401 and Firm of Kalu Karim v. City Municipality of Broach, ILR 51 Bom 764: (AIR 1927 Bom 527 ); it was held that taxing statutes have to be strictly construed and requirements which are precedent to the imposition of the tax have to be complied before tax can be legally imposed. In every case the words have to be construed in the context taking into consideration the language used and the object to be achieved. As we have said above, the use of the words "not being less than one month" implies the giving of a clear month excluding both the first and the last day of the month. There is no dispute as to the meaning of that expression alone which has been so construed and the observations of Lord Parker in 1960-3 All ER 500 will apply. But the question that arises in the present case is : what is the exact significance of these words when used in the context of the other words used in the proviso. The power of the municipality to levy the tax does not depend upon period prescribed for notice for objections. The power to tax is derived from the Statute; the provisions relating to the length of notice inviting objections and publication are merely procedural. The object of the notification is to inform the future rate payers and to invite objections from them. The proviso itself uses words "reasonable time." Reading "reasonable time" and "not being less than one month" together, it is clear that the time given must be reasonable and the legislature has only added a guide so that periods shorter than a month may not be fixed. In the present case the whole of the period except one day has been fixed and in view of the other facts it must be regarded as reasonable and to have complied with the provision which is directory in its later part.10. Counsel for the appellants in C. A. 499/501/58 wanted to raise a further objection to the legality of the tax levied and that ground was that the appellants were not carrying on a profession as they were only engaged in motor business and trade. This question was never raised at any previous stage and was not taken in the statement of the appellants case. Therefore it cannot be allowed to be raised. Besides it is without any substance in view of the definition of profession as given in S. 91 of the Act, which includes business. | 0[ds]There is no dispute as to the meaning of that expression alone which has been so construed and the observations of Lord Parker in 1960-3 All ER 500 will apply. But the question that arises in the present case is : what is the exact significance of these words when used in the context of the other words used in the proviso. The power of the municipality to levy the tax does not depend upon period prescribed for notice for objections. The power to tax is derived from the Statute; the provisions relating to the length of notice inviting objections and publication are merely procedural. The object of the notification is to inform the future rate payers and to invite objections from them. The proviso itself uses words "reasonable time." Reading "reasonable time" and "not being less than one month" together, it is clear that the time given must be reasonable and the legislature has only added a guide so that periods shorter than a month may not be fixed. In the present case the whole of the period except one day has been fixed and in view of the other facts it must be regarded as reasonable and to have complied with the provision which is directory in its later part.10. Counsel for the appellants in C. A. 499/501/58 wanted to raise a further objection to the legality of the tax levied and that ground was that the appellants were not carrying on a profession as they were only engaged in motor business and trade. This question was never raised at any previous stage and was not taken in the statement of the appellants case. Therefore it cannot be allowed to be raised. Besides it is without any substance in view of the definition of profession as given in S. 91 of the Act, which includesno specific finding was given as regards the operation of S. 91, the suit was decreed and the question whether the trust followed a profession or not seems to have got lost at the subsequent stages of the proceedings, that is, in appeal in the court of the District Judge and in the High Court. It is this point which was urged by counsel for the trust; his plea was that his case was not covered by S. 91, as being a religious trust it had no profession and was carrying on none. That is a matter which, in our opinion, should have been decided, and as neither the District Judge nor the High Court has given a finding on that point, it is necessary to remit the case to the High Court with the direction that the appeal be reheard and that particular question be decided on the materials on the record. Nothing that has been said in this judgment must be taken to be an expression of opinion on the merits of this plea taken by the appellant Trust. | 0 | 2,895 | 526 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
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that clear one months notice was necessary to be given, that is, both the first day and the last day of the month had to be excluded. To put it in the language used by Maxwell on Interpretation of Statutes, 10th Edition, p. 351:-"When..............." not less than" so many days are to intervene, both the terminal days are excluded from the computation."That does not seem to have been done in the present case. But in order to decide whether this portion of the proviso is a mandatory provision, it is convenient to see the object for which it has been enacted. Under S. 78, the procedure is laid down for the levying of a new tax, which has to be done by a resolution. But in the proviso, it is stated that before such a resolution can be passed, a notice to that effect has to be published in the official gazette and also in one Malyalam or Tamil newspaper having circulation within the municipality. Then comes the period for inviting objections. The object of notifying in the Gazette and Local Newspaper is both to give notice to the public and particularly to the persons who are likely to be taxed and to invite their objections. For this purpose, the proviso requires a reasonable period of not less than one month to be given. The object of the provision is to give reasonable time and opportunity and it is given as a guidance that reasonable time would be a month. The use of the words "reasonable period" before the words "not being less than one month" is significant. If sufficient time has been given for the invitation of the objections which only just falls short of the period mentioned in the proviso, then it would serve the object of the legislature. The provision in regard to time in the context must be held to be directory and not mandatory.9. The cases under the Income Tax Act like the Commissioner of Income Tax v. Ekbal and Co., 1945-13 ITR 154: (AIR 1945 Bom 316 ) where the notice under S. 22 (2) of the Income-tax Act (which requires the furnishing of a return within suck period not being less than thirty days) of 30 days only was held to be bad, because it was not a notice of thirty clear days, were so decided because that notice is the basis of the jurisdiction to tax and a legal notice is an obligation imposed in order to tax an individual and it is a mandatory provision. Similarly, cases under Rent Act will also not apply. In Thompson v. Stimpson, 1960-3 All ER 500 the law required that not less than four weeks notice shall be given for vacation of premises on a weekly tenancy and only one weeks time was given. It was held there that it was a bad notice. It was further held that four weeks notice was a condition precedent and the words had been used which had been interpreted in the past as providing for four clear weeks and also it was construed as four clear weeks, so that there might be certainty in the matter. In other cases, that were relied upon and which related to taxing statutes, the Municipal Council, Cuddapah v. M. and S. M. Rly. Co., Ltd., ILR 52 Mad 779: (AIR 1929 Mad 746 ); Borough Municipality of Amalner v. Pratap Spinning Weaving and Manufacturing Co. Ltd., Amalner, ILR (1952) Bom 918: (AIR 1932 Bom 401 and Firm of Kalu Karim v. City Municipality of Broach, ILR 51 Bom 764: (AIR 1927 Bom 527 ); it was held that taxing statutes have to be strictly construed and requirements which are precedent to the imposition of the tax have to be complied before tax can be legally imposed. In every case the words have to be construed in the context taking into consideration the language used and the object to be achieved. As we have said above, the use of the words "not being less than one month" implies the giving of a clear month excluding both the first and the last day of the month. There is no dispute as to the meaning of that expression alone which has been so construed and the observations of Lord Parker in 1960-3 All ER 500 will apply. But the question that arises in the present case is : what is the exact significance of these words when used in the context of the other words used in the proviso. The power of the municipality to levy the tax does not depend upon period prescribed for notice for objections. The power to tax is derived from the Statute; the provisions relating to the length of notice inviting objections and publication are merely procedural. The object of the notification is to inform the future rate payers and to invite objections from them. The proviso itself uses words "reasonable time." Reading "reasonable time" and "not being less than one month" together, it is clear that the time given must be reasonable and the legislature has only added a guide so that periods shorter than a month may not be fixed. In the present case the whole of the period except one day has been fixed and in view of the other facts it must be regarded as reasonable and to have complied with the provision which is directory in its later part.10. Counsel for the appellants in C. A. 499/501/58 wanted to raise a further objection to the legality of the tax levied and that ground was that the appellants were not carrying on a profession as they were only engaged in motor business and trade. This question was never raised at any previous stage and was not taken in the statement of the appellants case. Therefore it cannot be allowed to be raised. Besides it is without any substance in view of the definition of profession as given in S. 91 of the Act, which includes business.
### Response:
0
### Explanation:
There is no dispute as to the meaning of that expression alone which has been so construed and the observations of Lord Parker in 1960-3 All ER 500 will apply. But the question that arises in the present case is : what is the exact significance of these words when used in the context of the other words used in the proviso. The power of the municipality to levy the tax does not depend upon period prescribed for notice for objections. The power to tax is derived from the Statute; the provisions relating to the length of notice inviting objections and publication are merely procedural. The object of the notification is to inform the future rate payers and to invite objections from them. The proviso itself uses words "reasonable time." Reading "reasonable time" and "not being less than one month" together, it is clear that the time given must be reasonable and the legislature has only added a guide so that periods shorter than a month may not be fixed. In the present case the whole of the period except one day has been fixed and in view of the other facts it must be regarded as reasonable and to have complied with the provision which is directory in its later part.10. Counsel for the appellants in C. A. 499/501/58 wanted to raise a further objection to the legality of the tax levied and that ground was that the appellants were not carrying on a profession as they were only engaged in motor business and trade. This question was never raised at any previous stage and was not taken in the statement of the appellants case. Therefore it cannot be allowed to be raised. Besides it is without any substance in view of the definition of profession as given in S. 91 of the Act, which includesno specific finding was given as regards the operation of S. 91, the suit was decreed and the question whether the trust followed a profession or not seems to have got lost at the subsequent stages of the proceedings, that is, in appeal in the court of the District Judge and in the High Court. It is this point which was urged by counsel for the trust; his plea was that his case was not covered by S. 91, as being a religious trust it had no profession and was carrying on none. That is a matter which, in our opinion, should have been decided, and as neither the District Judge nor the High Court has given a finding on that point, it is necessary to remit the case to the High Court with the direction that the appeal be reheard and that particular question be decided on the materials on the record. Nothing that has been said in this judgment must be taken to be an expression of opinion on the merits of this plea taken by the appellant Trust.
|
VINOD VERMA Vs. UNION OF INDIA AND ORS | been raised by the learned counsel for the respondents is that a three-Judge Bench of this Court in BSNL vs. S.K. Dubey (supra) has finally determined the controversy and held that ROTA rule will not be applicable for determining the seniority of Sub-Divisional Engineers. We may notice the judgment of this Court dated 12.08.2014 in BSNL vs. S.K. Dubey in some detail. BSNL has filed the appeal. In the said appeal the challenge was made to the order of CAT, Jabalpur which directed the appellant, BSNL to assign the notional date of promotion to Sub-Divisional Engineers which order was set aside by this Court by the said judgment. Paragraphs 2 to 4 of the judgment are as follows 2. This appeal by special leave is directed against the order of the Central Administrative Tribunal, Jabalpur, whereby the original application filed by the respondents herein was allowed and the direction has been given to the present appellants (respondent therein) to assign the notional date of promotion as Sub Divisional Engineers (SDEs) with consequential benefits such as counting of experience for further promotions, annual increments etc. to the original applicants with effect from 23.01.2002. 3. The order passed by the Central Administrative Tribunal cannot be sustained for more than one reason. In the first place, there is no rule with regard to the subject service which gives benefit of assigning the notional date of promotion with retrospective effect. The present respondents were employees of the Department of Telecommunications, Government of India and were working as Junior Telecom Officers prior to 1996. In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Telecommunications Engineering Services (Group B) Recruitment Rules, 1996 were made with effect from 22.07.1996. Inter alia, these rules provide for method of recruitment, age limit and other qualifications for the recruitment by way of promotion to the post of TES Group B. 4. As per these Rules, 75% promotion is to be made on the basis of seniority-cum- fitness from amongst Junior Telecom Officers with three years regular service in the Grade and 25% is to be promoted on the basis of Departmental Competitive Examination from Junior Telecom Officers with three years r10egular service in the Grade. The crucial date for determining the eligibility is 1st July of the year to which the vacancy pertains. 1996 Recruitment Rules do not provide for ROTA nor does it provide for holding Departmental Competitive Examination for the vacancies every year in contra- distinction to the earlier Rules of 1981 entitled Telegraph Engineering Service (Group B Posts) Recruitment Rules, 1981. 1981 Rules, inter alia, had a provision that inter se seniority of the officials who have qualified in the Departmental Qualifying Examination shall be in the ratio of 2:1 starting with the officers selected by the method of selection by Departmental Promotion Committee on the basis of Departmental Qualifying Examination. It also provided that there shall be normally one examination consisting of two parts called Qualifying- cum-Competitive Examination for promotion to the service which shall be held at least once in a calendar year. The ROTA rule as well as holding the examination at least once in a calendar year which were provided in the 1981 Rules are conspicuously absent in the 1996 Rules. The validity of the 1996 Rules has not been put in issue by any one. 21. This Court further held that in the absence of any express provision in the rules, no promotion or seniority can be granted from a retrospective date when the employee has not been born in the cadre. 22. There is one more reason to hold that the present appeal is covered by three-Judge Bench judgment of this Court dated 12.08.2014. Against the judgment of Tribunal in TA No.84-HR-2009 (Dewan Chand vs. Union of India) a writ petition was filed in Punjab and Haryana High Court being CWP No.5133/CAT of 2010 (Rajesh Banta and others vs. Central Administrative Tribunal and others). Thus, in the said writ petition the same order of the Tribunal dated 25.08.2009 was under challenge which has been challenged by the appellant herein. This Court transferred CWP No.5133/CAT of 2010 (Rajesh Banta and others vs. Central Administrative Tribunal and others) by Transferred Case (Civil) No……of 2014(arising out of T.P.(C)No.184 of 2013) and by the judgment dated 12.08.2014, the three-Judge Bench dismissed the writ petition which was filed challenging the order of the CAT in Dewan Chand. The order of this Court is brought on record at pages 181-182 of the paper book which is to the following effect: TRANSFERRED CASE (CIVIL) NO. OF 2014 (Arising out of T.P.(Civil) No.184 of 2013) RAJESH BANTA & ORS. PETITIONER(S) VERSUS DEWAN CHAND & ORS. RESPONDENT(S) O R D E R Transfer petition is allowed. Writ Petition being C.W.P. No.5133/CAT-2010 titled Rajesh Banta and Others v. Central Administrative Tribunal and Others is transferred from Punjab and Haryana High Court to this Court and is treated as Transferred Case. 2. We have heard Mr. Sunil Kumar, learned senior counsel for the petitioners. 3. For the reasons stated by us in our order passed today in Civil Appeal arising out of SLP(C) ...2/- -2- No.39932 of 2012 titled Bharat Sanchar Nigam Ltd. & Ors. vs. S.K. Dubey & Ors., the transferred case is liable to be dismissed and is dismissed accordingly. No costs. .......................CJI. ( R.M. LODHA ) .........................J. ( KURIAN JOSEPH ) NEW DELHI; ........................J. AUGUST 12,2014 ( ROHINTON FALI NARIMAN ) 23. When three-Judge Bench of this Court following the pronouncement in BSNL & Ors. vs. S.K. Dubey & Ors., judgment of the same day, has dismissed the writ petition against the same very judgment of the CAT of Chandigarh Bench in Dewan Chand vs. Union of India, the fate of this appeal is sealed by the said judgment by dismissing the writ petition against the order of the Central Administrative Tribunal, Chandigarh Bench in TA No.84-HR-2009. The writ petition filed by the appellant has to meet the same fate. | 0[ds]14. The statutory rules, namely, the Telecommunications Engineering Service (Group B Posts) Recruitment Rules, 1996 have been framed under proviso to Article 309 according to which the post of Sub-Divisional Engineer(SDE) is a post which is to be filled up by 100% promotion.15. In the seniority list Nos.7 and 8, the inter se seniority of SDE promoted through seniority-cum- fitness and LDCE was fixed by the department in the ratio of 3:1 as per OM dated 03.07.1986 which was sought to be challenged in the present case, where the appeal has arisen out of the order passed by the Chandigarh Bench of Central Administrative Tribunal. In TA No.84-HR-2009 (Dewan Chand vs. Union of India), the applicants who had approached the Tribunal were promoted under seniority-cum-fitness and they were allocated to the seniority position below the promotees under LDCE quota under which they were given seniority slots earlier to date of promotion. The Tribunal had allowed the TA No.84-HR- 2009 and set aside the seniority list and directed for drawing the seniority list on the basis of date of joining of the incumbents. The appellant who claims seniority position as per occurring of vacancy for LDCE quota is aggrieved by the direction of the Tribunal16. A perusal of Rules, 1996 indicates that Rules, 1996 provides for the method of recruitment, age and other qualifications. The Rules which have been brought on record as Annexure P-8 to the appeal do not contain any provision relating to determination of seniority. The statutory Rules, 1996 being silent on the question of determination of seniority, Shri Sundaram is right in his submission that for determination of seniority OMs dated 22.12.1959, 24.06.1978, 07.02.1986, 03.07.1986 and 07.02.1990 have to be looked into. It is settled law that the determination of seniority can be provided by the Executive instructions if the subject matter is not covered by the statutory rules17. It is to be noted that the High Court has dismissed the writ petition filed by the appellant challenging the order of the CAT dated 25.08.2009 holding that the issue is covered by the judgment of this Court in BSNL vs. S. Sadasivan. It is necessary to look into the judgment of this Court in BSNL vs. S. Sadasivan and proceeding giving rise to this Courts order dated 12.08.2014. Shri S. Sadasivan before CAT, Bombay Bench, Mumbai has challenged the validity of the seniority list dated 28.07.2004. In seniority list Nos.6 and 7 of Telecommunication Engineers Group B S. Sadasivan was promoted under 75% quota on 07.12.2001. On 01.12.2002 Limited Departmental Competitive Examination was held for 25% quota, result of which was declared on 15.12.2003. Thereafter, seniority list Nos.6 and 7 were issued. The case of S. Sadasivan was that seniority of the applicant was below to who was subsequently promoted on 26.05.2004. It is relevant to notice that the Central Administrative Tribunal, Bombay Bench allowed the application vide its judgment dated 25.11.2010 and set aside the seniority list. The respondents were directed to recast the seniority list on the basis of the order given by the Chandigarh Bench of CAT in Dewan Chands case, (which is the order of the Tribunal which has given rise to the present appeal) against which order BSNL filed Writ Petition No.3725 of 2011 which was dismissed by the Bombay High Court on 21.06.201119. The order of the CAT, Bombay which was passed issuing direction for casting of the seniority on the basis of the judgment of Dewan Chand passed by CAT, Chandigarh, thus, has been received final approval by this Court20. At this stage, we may consider one more submission which has been raised by the learned counsel for the respondents. The submission which has been raised by the learned counsel for the respondents is that a three-Judge Bench of this Court in BSNL vs. S.K. Dubey (supra) has finally determined the controversy and held that ROTA rule will not be applicable for determining the seniority of Sub-Divisional Engineers. We may notice the judgment of this Court dated 12.08.2014 in BSNL vs. S.K. Dubey in some detail. BSNL has filed the appeal. In the said appeal the challenge was made to the order of CAT, Jabalpur which directed the appellant, BSNL to assign the notional date of promotion to Sub-Divisional Engineers which order was set aside by this Court by the said judgment.21. This Court further held that in the absence of any express provision in the rules, no promotion or seniority can be granted from a retrospective date when the employee has not been born in the cadre22. There is one more reason to hold that the present appeal is covered by three-Judge Bench judgment of this Court dated 12.08.2014. Against the judgment of Tribunal in TA No.84-HR-2009 (Dewan Chand vs. Union of India) a writ petition was filed in Punjab and Haryana High Court being CWP No.5133/CAT of 2010 (Rajesh Banta and others vs. Central Administrative Tribunal and others). Thus, in the said writ petition the same order of the Tribunal dated 25.08.2009 was under challenge which has been challenged by the appellant herein. This Court transferred CWP No.5133/CAT of 2010 (Rajesh Banta and others vs. Central Administrative Tribunal and others) by Transferred Case (Civil) No……of 2014(arising out of T.P.(C)No.184 of 2013) and by the judgment dated 12.08.2014, the three-Judge Bench dismissed the writ petition which was filed challenging the order of the CAT in Dewan Chand.23. When three-Judge Bench of this Court following the pronouncement in BSNL & Ors. vs. S.K. Dubey & Ors., judgment of the same day, has dismissed the writ petition against the same very judgment of the CAT of Chandigarh Bench in Dewan Chand vs. Union of India, the fate of this appeal is sealed by the said judgment by dismissing the writ petition against the order of the Central Administrative Tribunal, Chandigarh Bench in TA No.84-HR-2009. The writ petition filed by the appellant has to meet the same fate. | 0 | 3,986 | 1,090 | ### 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:
been raised by the learned counsel for the respondents is that a three-Judge Bench of this Court in BSNL vs. S.K. Dubey (supra) has finally determined the controversy and held that ROTA rule will not be applicable for determining the seniority of Sub-Divisional Engineers. We may notice the judgment of this Court dated 12.08.2014 in BSNL vs. S.K. Dubey in some detail. BSNL has filed the appeal. In the said appeal the challenge was made to the order of CAT, Jabalpur which directed the appellant, BSNL to assign the notional date of promotion to Sub-Divisional Engineers which order was set aside by this Court by the said judgment. Paragraphs 2 to 4 of the judgment are as follows 2. This appeal by special leave is directed against the order of the Central Administrative Tribunal, Jabalpur, whereby the original application filed by the respondents herein was allowed and the direction has been given to the present appellants (respondent therein) to assign the notional date of promotion as Sub Divisional Engineers (SDEs) with consequential benefits such as counting of experience for further promotions, annual increments etc. to the original applicants with effect from 23.01.2002. 3. The order passed by the Central Administrative Tribunal cannot be sustained for more than one reason. In the first place, there is no rule with regard to the subject service which gives benefit of assigning the notional date of promotion with retrospective effect. The present respondents were employees of the Department of Telecommunications, Government of India and were working as Junior Telecom Officers prior to 1996. In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Telecommunications Engineering Services (Group B) Recruitment Rules, 1996 were made with effect from 22.07.1996. Inter alia, these rules provide for method of recruitment, age limit and other qualifications for the recruitment by way of promotion to the post of TES Group B. 4. As per these Rules, 75% promotion is to be made on the basis of seniority-cum- fitness from amongst Junior Telecom Officers with three years regular service in the Grade and 25% is to be promoted on the basis of Departmental Competitive Examination from Junior Telecom Officers with three years r10egular service in the Grade. The crucial date for determining the eligibility is 1st July of the year to which the vacancy pertains. 1996 Recruitment Rules do not provide for ROTA nor does it provide for holding Departmental Competitive Examination for the vacancies every year in contra- distinction to the earlier Rules of 1981 entitled Telegraph Engineering Service (Group B Posts) Recruitment Rules, 1981. 1981 Rules, inter alia, had a provision that inter se seniority of the officials who have qualified in the Departmental Qualifying Examination shall be in the ratio of 2:1 starting with the officers selected by the method of selection by Departmental Promotion Committee on the basis of Departmental Qualifying Examination. It also provided that there shall be normally one examination consisting of two parts called Qualifying- cum-Competitive Examination for promotion to the service which shall be held at least once in a calendar year. The ROTA rule as well as holding the examination at least once in a calendar year which were provided in the 1981 Rules are conspicuously absent in the 1996 Rules. The validity of the 1996 Rules has not been put in issue by any one. 21. This Court further held that in the absence of any express provision in the rules, no promotion or seniority can be granted from a retrospective date when the employee has not been born in the cadre. 22. There is one more reason to hold that the present appeal is covered by three-Judge Bench judgment of this Court dated 12.08.2014. Against the judgment of Tribunal in TA No.84-HR-2009 (Dewan Chand vs. Union of India) a writ petition was filed in Punjab and Haryana High Court being CWP No.5133/CAT of 2010 (Rajesh Banta and others vs. Central Administrative Tribunal and others). Thus, in the said writ petition the same order of the Tribunal dated 25.08.2009 was under challenge which has been challenged by the appellant herein. This Court transferred CWP No.5133/CAT of 2010 (Rajesh Banta and others vs. Central Administrative Tribunal and others) by Transferred Case (Civil) No……of 2014(arising out of T.P.(C)No.184 of 2013) and by the judgment dated 12.08.2014, the three-Judge Bench dismissed the writ petition which was filed challenging the order of the CAT in Dewan Chand. The order of this Court is brought on record at pages 181-182 of the paper book which is to the following effect: TRANSFERRED CASE (CIVIL) NO. OF 2014 (Arising out of T.P.(Civil) No.184 of 2013) RAJESH BANTA & ORS. PETITIONER(S) VERSUS DEWAN CHAND & ORS. RESPONDENT(S) O R D E R Transfer petition is allowed. Writ Petition being C.W.P. No.5133/CAT-2010 titled Rajesh Banta and Others v. Central Administrative Tribunal and Others is transferred from Punjab and Haryana High Court to this Court and is treated as Transferred Case. 2. We have heard Mr. Sunil Kumar, learned senior counsel for the petitioners. 3. For the reasons stated by us in our order passed today in Civil Appeal arising out of SLP(C) ...2/- -2- No.39932 of 2012 titled Bharat Sanchar Nigam Ltd. & Ors. vs. S.K. Dubey & Ors., the transferred case is liable to be dismissed and is dismissed accordingly. No costs. .......................CJI. ( R.M. LODHA ) .........................J. ( KURIAN JOSEPH ) NEW DELHI; ........................J. AUGUST 12,2014 ( ROHINTON FALI NARIMAN ) 23. When three-Judge Bench of this Court following the pronouncement in BSNL & Ors. vs. S.K. Dubey & Ors., judgment of the same day, has dismissed the writ petition against the same very judgment of the CAT of Chandigarh Bench in Dewan Chand vs. Union of India, the fate of this appeal is sealed by the said judgment by dismissing the writ petition against the order of the Central Administrative Tribunal, Chandigarh Bench in TA No.84-HR-2009. The writ petition filed by the appellant has to meet the same fate.
### Response:
0
### Explanation:
14. The statutory rules, namely, the Telecommunications Engineering Service (Group B Posts) Recruitment Rules, 1996 have been framed under proviso to Article 309 according to which the post of Sub-Divisional Engineer(SDE) is a post which is to be filled up by 100% promotion.15. In the seniority list Nos.7 and 8, the inter se seniority of SDE promoted through seniority-cum- fitness and LDCE was fixed by the department in the ratio of 3:1 as per OM dated 03.07.1986 which was sought to be challenged in the present case, where the appeal has arisen out of the order passed by the Chandigarh Bench of Central Administrative Tribunal. In TA No.84-HR-2009 (Dewan Chand vs. Union of India), the applicants who had approached the Tribunal were promoted under seniority-cum-fitness and they were allocated to the seniority position below the promotees under LDCE quota under which they were given seniority slots earlier to date of promotion. The Tribunal had allowed the TA No.84-HR- 2009 and set aside the seniority list and directed for drawing the seniority list on the basis of date of joining of the incumbents. The appellant who claims seniority position as per occurring of vacancy for LDCE quota is aggrieved by the direction of the Tribunal16. A perusal of Rules, 1996 indicates that Rules, 1996 provides for the method of recruitment, age and other qualifications. The Rules which have been brought on record as Annexure P-8 to the appeal do not contain any provision relating to determination of seniority. The statutory Rules, 1996 being silent on the question of determination of seniority, Shri Sundaram is right in his submission that for determination of seniority OMs dated 22.12.1959, 24.06.1978, 07.02.1986, 03.07.1986 and 07.02.1990 have to be looked into. It is settled law that the determination of seniority can be provided by the Executive instructions if the subject matter is not covered by the statutory rules17. It is to be noted that the High Court has dismissed the writ petition filed by the appellant challenging the order of the CAT dated 25.08.2009 holding that the issue is covered by the judgment of this Court in BSNL vs. S. Sadasivan. It is necessary to look into the judgment of this Court in BSNL vs. S. Sadasivan and proceeding giving rise to this Courts order dated 12.08.2014. Shri S. Sadasivan before CAT, Bombay Bench, Mumbai has challenged the validity of the seniority list dated 28.07.2004. In seniority list Nos.6 and 7 of Telecommunication Engineers Group B S. Sadasivan was promoted under 75% quota on 07.12.2001. On 01.12.2002 Limited Departmental Competitive Examination was held for 25% quota, result of which was declared on 15.12.2003. Thereafter, seniority list Nos.6 and 7 were issued. The case of S. Sadasivan was that seniority of the applicant was below to who was subsequently promoted on 26.05.2004. It is relevant to notice that the Central Administrative Tribunal, Bombay Bench allowed the application vide its judgment dated 25.11.2010 and set aside the seniority list. The respondents were directed to recast the seniority list on the basis of the order given by the Chandigarh Bench of CAT in Dewan Chands case, (which is the order of the Tribunal which has given rise to the present appeal) against which order BSNL filed Writ Petition No.3725 of 2011 which was dismissed by the Bombay High Court on 21.06.201119. The order of the CAT, Bombay which was passed issuing direction for casting of the seniority on the basis of the judgment of Dewan Chand passed by CAT, Chandigarh, thus, has been received final approval by this Court20. At this stage, we may consider one more submission which has been raised by the learned counsel for the respondents. The submission which has been raised by the learned counsel for the respondents is that a three-Judge Bench of this Court in BSNL vs. S.K. Dubey (supra) has finally determined the controversy and held that ROTA rule will not be applicable for determining the seniority of Sub-Divisional Engineers. We may notice the judgment of this Court dated 12.08.2014 in BSNL vs. S.K. Dubey in some detail. BSNL has filed the appeal. In the said appeal the challenge was made to the order of CAT, Jabalpur which directed the appellant, BSNL to assign the notional date of promotion to Sub-Divisional Engineers which order was set aside by this Court by the said judgment.21. This Court further held that in the absence of any express provision in the rules, no promotion or seniority can be granted from a retrospective date when the employee has not been born in the cadre22. There is one more reason to hold that the present appeal is covered by three-Judge Bench judgment of this Court dated 12.08.2014. Against the judgment of Tribunal in TA No.84-HR-2009 (Dewan Chand vs. Union of India) a writ petition was filed in Punjab and Haryana High Court being CWP No.5133/CAT of 2010 (Rajesh Banta and others vs. Central Administrative Tribunal and others). Thus, in the said writ petition the same order of the Tribunal dated 25.08.2009 was under challenge which has been challenged by the appellant herein. This Court transferred CWP No.5133/CAT of 2010 (Rajesh Banta and others vs. Central Administrative Tribunal and others) by Transferred Case (Civil) No……of 2014(arising out of T.P.(C)No.184 of 2013) and by the judgment dated 12.08.2014, the three-Judge Bench dismissed the writ petition which was filed challenging the order of the CAT in Dewan Chand.23. When three-Judge Bench of this Court following the pronouncement in BSNL & Ors. vs. S.K. Dubey & Ors., judgment of the same day, has dismissed the writ petition against the same very judgment of the CAT of Chandigarh Bench in Dewan Chand vs. Union of India, the fate of this appeal is sealed by the said judgment by dismissing the writ petition against the order of the Central Administrative Tribunal, Chandigarh Bench in TA No.84-HR-2009. The writ petition filed by the appellant has to meet the same fate.
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State of Madhya Pradesh & Another Vs. Pawan Saw Mills & Others | fees and completion of the legal formalitiesThe Appeal No.193/95 is partly admitted to the extent that the plaintiffs are not entitled to get any damages from the Defendants/ Respondents No.1 and 2. The judgment of the Honble lower court is confirmed with regard to rest of the conclusions.A copy of the judgment be kept in Appeal No.193/95."4. The timber, which was seized, was sold away by the State of Madhya Pradesh in the year 1992-1993. However, the fact could not be proved before the trial court as the State of Madhya Pradesh remained ex-parte and preferred the second appeal before the High Court only when the first appellate court fastened the liability exclusively on appellants by modifying the judgment and decree passed by the trial court. The High Court has dismissed the appeal.5. It was submitted by learned counsel appearing on behalf of the State of Madhya Pradesh that as per the decree passed by the trial court, the State of Madhya Pradesh had to make the payment of damages @ Rs. 50/- per day from the date of seizure of the parts of saw mill i.e. machinery and tools w.e.f. 19.11.1992 to 29.07.1993, whereas total financial liability was Rs. 6,500 only. As per modified decree passed by the first appellate court dated 08.05.1997, liability for damages came to be enhanced to Rs. 83,600/- from Rs. 6,500/-. It was further submitted that the damages @ Rs. 200/- per day was imposed with effect of date of seizure i.e. from 19.11.1992 to the date of return of the goods i.e. 10.01.1994, for a total period of 418 days including expenses of the filing of the appeal and litigation expenses, total amount came to Rs. 92,618/- whereas on the basis of wrong calculation executing court has got deposited the amount from the appellant(s) herein on 05.08.1997 a sum of Rs. 3,93,543/-. On 28.10.1997 a sum of Rs. 6,500/- and on 22.02.1999, a cheque dated 15.02.1999 was handed over for a sum of Rs. 1,08,525/- and on 19.02.2003 a sum of Rs. 3,37,435/- had also been paid. It was further submitted that total amount under decree passed by first appellate court was Rs. 92,618/- plus cost of the timber whereas much more amount had been deposited. When second appeal was preferred an interim stay was granted by the High Court as such payment of the cheque for further amount was stopped. As a matter of fact, the decree holder was not entitled for the amount for which the compromise had been entered into. As a matter of fact, Respondent(s) had received a sum of Rs. 8,46,053/- which was far in excess of the decretal amount. As per the learned counsel appearing for the appellants, a sum of Rs. 7,27,233/- had been paid excess.6. It was submitted on behalf of respondent(s) decree holder that no evidence was led by the State of Madhya Pradesh to prove factum of sale of goods and value fetched by the State of Madhya Pradesh on sale of timber. The value of the timber was lower at that time but it has gone very high at present. The wheels of saw machine were not given back and due to the appeal preferred by the State of Madhya Pradesh the license had not been renewed by the State of Uttar Pradesh, the respondent decree holder has suffered loss w.e.f 1992 for last 25 years and once compromise had been entered into before the executing court, it ought to be honoured by the State of Madhya Pradesh.7. After hearing learned counsel for the parties, in our opinion, the executing court while fastening liability has gone beyond the scope of the decree. Whereas it was required to execute the decree as it stood and could not have found more items to be handed over which were not reflected in the seizure list as well as in Superdaginama. The finding beyond that was rendered illegally. Thus, executing court has committed gross illegality in exceeding its powers, it was not legitimate and it went beyond decree while awarding compensation. As a matter of fact, the list of seizure of articles prepared on 19.11.1992 and the list of items reflected in Superdaginama tally with each other and it was clear that what had been seized had been returned except timber. The submission raised by decree holder that the wheels of the saw machine were not handed over, is wholly incorrect. It is mentioned in Superdaginama that three wheels were returned back. Thus, seized motors and tools were handed back as such the decree stood satisfied with respect to the return of the machinery of saw mill i.e. motors and tools etc. by the State of Madhya Pradesh. However, other part, which remained to be complied by the State of Madhya Pradesh, was with respect to the return of timber.8. Since, order of the executing court has also been questioned before us, it is apparent that the decree holder has realized more amount than the one which could be legally realized under the decree. No doubt about it that the decree was required to be complied with respect to the return of the timber also. Fact remains that it was sold in auction. There is nothing to doubt about the factum of sale of the timber seized by the State of Madhya Pradesh in the year 1992 in which the timber was sold for a sum of Rs. 26,202/-. The timber once sold could not have been returned back. Thus, the decree holder would be entitled to price of the timber for which it was sold along with the interest thereupon.9. It appears that the decree holder was entitled for a sum of Rs. 92,618/- plus Rs. 26,202/- along with interest but had received a sum of Rs. 8,46,053/-. The State of Madhya Pradesh was required to furnish proof of sale of timber before trial court when it had sold the timber it remained ex-parte and payment of the price of timber was not made timely. | 1[ds]7. After hearing learned counsel for the parties, in our opinion, the executing court while fastening liability has gone beyond the scope of the decree. Whereas it was required to execute the decree as it stood and could not have found more items to be handed over which were not reflected in the seizure list as well as in Superdaginama. The finding beyond that was rendered illegally. Thus, executing court has committed gross illegality in exceeding its powers, it was not legitimate and it went beyond decree while awarding compensation. As a matter of fact, the list of seizure of articles prepared on 19.11.1992 and the list of items reflected in Superdaginama tally with each other and it was clear that what had been seized had been returned except timber. The submission raised by decree holder that the wheels of the saw machine were not handed over, is wholly incorrect. It is mentioned in Superdaginama that three wheels were returned back. Thus, seized motors and tools were handed back as such the decree stood satisfied with respect to the return of the machinery of saw mill i.e. motors and tools etc. by the State of Madhya Pradesh. However, other part, which remained to be complied by the State of Madhya Pradesh, was with respect to the return of timber.8. Since, order of the executing court has also been questioned before us, it is apparent that the decree holder has realized more amount than the one which could be legally realized under the decree. No doubt about it that the decree was required to be complied with respect to the return of the timber also. Fact remains that it was sold in auction. There is nothing to doubt about the factum of sale of the timber seized by the State of Madhya Pradesh in the year 1992 in which the timber was sold for a sum of Rs.The timber once sold could not have been returned back. Thus, the decree holder would be entitled to price of the timber for which it was sold along with the interest thereupon.9. It appears that the decree holder was entitled for a sum of Rs. 92,618/plus Rs. 26,202/along with interest but had received a sum of Rs.The State of Madhya Pradesh was required to furnish proof of sale of timber before trial court when it had sold the timber it remainedand payment of the price of timber was not made timely. | 1 | 1,488 | 444 | ### 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:
fees and completion of the legal formalitiesThe Appeal No.193/95 is partly admitted to the extent that the plaintiffs are not entitled to get any damages from the Defendants/ Respondents No.1 and 2. The judgment of the Honble lower court is confirmed with regard to rest of the conclusions.A copy of the judgment be kept in Appeal No.193/95."4. The timber, which was seized, was sold away by the State of Madhya Pradesh in the year 1992-1993. However, the fact could not be proved before the trial court as the State of Madhya Pradesh remained ex-parte and preferred the second appeal before the High Court only when the first appellate court fastened the liability exclusively on appellants by modifying the judgment and decree passed by the trial court. The High Court has dismissed the appeal.5. It was submitted by learned counsel appearing on behalf of the State of Madhya Pradesh that as per the decree passed by the trial court, the State of Madhya Pradesh had to make the payment of damages @ Rs. 50/- per day from the date of seizure of the parts of saw mill i.e. machinery and tools w.e.f. 19.11.1992 to 29.07.1993, whereas total financial liability was Rs. 6,500 only. As per modified decree passed by the first appellate court dated 08.05.1997, liability for damages came to be enhanced to Rs. 83,600/- from Rs. 6,500/-. It was further submitted that the damages @ Rs. 200/- per day was imposed with effect of date of seizure i.e. from 19.11.1992 to the date of return of the goods i.e. 10.01.1994, for a total period of 418 days including expenses of the filing of the appeal and litigation expenses, total amount came to Rs. 92,618/- whereas on the basis of wrong calculation executing court has got deposited the amount from the appellant(s) herein on 05.08.1997 a sum of Rs. 3,93,543/-. On 28.10.1997 a sum of Rs. 6,500/- and on 22.02.1999, a cheque dated 15.02.1999 was handed over for a sum of Rs. 1,08,525/- and on 19.02.2003 a sum of Rs. 3,37,435/- had also been paid. It was further submitted that total amount under decree passed by first appellate court was Rs. 92,618/- plus cost of the timber whereas much more amount had been deposited. When second appeal was preferred an interim stay was granted by the High Court as such payment of the cheque for further amount was stopped. As a matter of fact, the decree holder was not entitled for the amount for which the compromise had been entered into. As a matter of fact, Respondent(s) had received a sum of Rs. 8,46,053/- which was far in excess of the decretal amount. As per the learned counsel appearing for the appellants, a sum of Rs. 7,27,233/- had been paid excess.6. It was submitted on behalf of respondent(s) decree holder that no evidence was led by the State of Madhya Pradesh to prove factum of sale of goods and value fetched by the State of Madhya Pradesh on sale of timber. The value of the timber was lower at that time but it has gone very high at present. The wheels of saw machine were not given back and due to the appeal preferred by the State of Madhya Pradesh the license had not been renewed by the State of Uttar Pradesh, the respondent decree holder has suffered loss w.e.f 1992 for last 25 years and once compromise had been entered into before the executing court, it ought to be honoured by the State of Madhya Pradesh.7. After hearing learned counsel for the parties, in our opinion, the executing court while fastening liability has gone beyond the scope of the decree. Whereas it was required to execute the decree as it stood and could not have found more items to be handed over which were not reflected in the seizure list as well as in Superdaginama. The finding beyond that was rendered illegally. Thus, executing court has committed gross illegality in exceeding its powers, it was not legitimate and it went beyond decree while awarding compensation. As a matter of fact, the list of seizure of articles prepared on 19.11.1992 and the list of items reflected in Superdaginama tally with each other and it was clear that what had been seized had been returned except timber. The submission raised by decree holder that the wheels of the saw machine were not handed over, is wholly incorrect. It is mentioned in Superdaginama that three wheels were returned back. Thus, seized motors and tools were handed back as such the decree stood satisfied with respect to the return of the machinery of saw mill i.e. motors and tools etc. by the State of Madhya Pradesh. However, other part, which remained to be complied by the State of Madhya Pradesh, was with respect to the return of timber.8. Since, order of the executing court has also been questioned before us, it is apparent that the decree holder has realized more amount than the one which could be legally realized under the decree. No doubt about it that the decree was required to be complied with respect to the return of the timber also. Fact remains that it was sold in auction. There is nothing to doubt about the factum of sale of the timber seized by the State of Madhya Pradesh in the year 1992 in which the timber was sold for a sum of Rs. 26,202/-. The timber once sold could not have been returned back. Thus, the decree holder would be entitled to price of the timber for which it was sold along with the interest thereupon.9. It appears that the decree holder was entitled for a sum of Rs. 92,618/- plus Rs. 26,202/- along with interest but had received a sum of Rs. 8,46,053/-. The State of Madhya Pradesh was required to furnish proof of sale of timber before trial court when it had sold the timber it remained ex-parte and payment of the price of timber was not made timely.
### Response:
1
### Explanation:
7. After hearing learned counsel for the parties, in our opinion, the executing court while fastening liability has gone beyond the scope of the decree. Whereas it was required to execute the decree as it stood and could not have found more items to be handed over which were not reflected in the seizure list as well as in Superdaginama. The finding beyond that was rendered illegally. Thus, executing court has committed gross illegality in exceeding its powers, it was not legitimate and it went beyond decree while awarding compensation. As a matter of fact, the list of seizure of articles prepared on 19.11.1992 and the list of items reflected in Superdaginama tally with each other and it was clear that what had been seized had been returned except timber. The submission raised by decree holder that the wheels of the saw machine were not handed over, is wholly incorrect. It is mentioned in Superdaginama that three wheels were returned back. Thus, seized motors and tools were handed back as such the decree stood satisfied with respect to the return of the machinery of saw mill i.e. motors and tools etc. by the State of Madhya Pradesh. However, other part, which remained to be complied by the State of Madhya Pradesh, was with respect to the return of timber.8. Since, order of the executing court has also been questioned before us, it is apparent that the decree holder has realized more amount than the one which could be legally realized under the decree. No doubt about it that the decree was required to be complied with respect to the return of the timber also. Fact remains that it was sold in auction. There is nothing to doubt about the factum of sale of the timber seized by the State of Madhya Pradesh in the year 1992 in which the timber was sold for a sum of Rs.The timber once sold could not have been returned back. Thus, the decree holder would be entitled to price of the timber for which it was sold along with the interest thereupon.9. It appears that the decree holder was entitled for a sum of Rs. 92,618/plus Rs. 26,202/along with interest but had received a sum of Rs.The State of Madhya Pradesh was required to furnish proof of sale of timber before trial court when it had sold the timber it remainedand payment of the price of timber was not made timely.
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Ravindra Singh Vs. Phool Singh and Another | surplus land, be deemed to be and always to have been void, and - (i) it shall be open to the transferee to claim refund of the proportionate amount of consideration, if any, advanced by him to the transferor, and such amount shall be charged on the amount payable to the transferor under Section 17 and also on any land retained by the transferor within the ceiling area, which shall be liable to be sold in satisfaction of the charge, notwithstanding anything contained in Section 153 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950; (ii) any party to the partition (other than the tenure-holder in respect of whom the surplus land has been determined) whose land is included in surplus land of the said tenure-holder, shall be entitled to have the partition reopened. " 6. A combined reading of sub-section (6) of Section 5 and clause (d) of the proviso to Section 12-A yields the following position (insofar as it is relevant for the purpose of this appeal) (a) In determining the ceiling area applicable to a tenure-holder, any transfer of land made after 24-1-1971 shall be ignored and such transferred land shall be included in the holding of the transferor except where such transfer is saved by the proviso to sub-section (6) of Section 5;(b) In the matter of surrender, however, the Prescribed Authority is entitled to insist that the tenure-holder surrender land which is not the subject-matter of transfer referred to in Section 5(6); (c) If, however, surrender of surplus land by the tenure-holder is not possible or feasible without including the transferred land, then the Prescribed Authority will accept such surrender, in which event transfer of such land shall be deemed to be null and void; (d) Where the Prescribed Authority accepts the surrender of transferred land, the transferee is entitled to compensation and other rights as are provided in sub-clause (1) of clause (d) of the proviso to Section 12-A The object of the above provisions is quite clear and consistent. Any transfer effected after 24-1-1971 shall be ignored for the purpose of determining the ceiling area of the tenure-holder, but in the matter of surrender, the Government does not want, as far as possible, to accept surrender of transferred land. This may be for the reason that acceptance of surrender of transferred land is likely to lead to complications and disputes; the Government wants to accept the surrender of lands which are free of any such controversy. But if that does not prove possible, the Government will accept the surrender land even, in which event the transfer of such land shall be treated as null and void so as to vest clear title in the Government. The transferee of a land so surrendered is entitled to claim the compensation money and other rights mentioned in sub-clause (i) of clause (d) 7. In the light of the above provisions, the Authorities ought to have examined the offer of surrender made by the respondent, Phool Singh in accordance therewith. He must be asked to surrender lands which are not the subject-matter of transfer. Only where the Prescribed Authority is satisfied that surrender of surplus land is not possible without including the transferred land, will he accept the surrender land, to the extent necessary -with the necessary consequences flowing therefrom. The High Court and Authorities under the Act, however, have not followed this course because they felt that the order of this Court dated 7-5-1981 entitles the respondent Phool Singh to surrender such land as he chooses. We are of the opinion that they were not right in construing this Courts order in the above manner. Firstly, the appellant herein was not heard (he says that he was not even a party to the said SLP) before passing such order. Secondly, the said order cannot be understood as laying down a proposition contrary to law. All that it says is that the petitioner therein, i. e., respondent Phool Singh "will be entitled to choice in respect of plots forming the subject-matter of the sale deed". The said words are not capable of being construed as authorising Phool Singh to surrender the transferred land even if he is in a position to comply with the requirement of surrender of surplus land without touching the transferred land. To repeat, the order of this Court cannot and should not be construed in a manner inconsistent with the provisions of the Act. This Court could not have contemplated passing an order contrary to the provisions of the Act or to authorise the respondent Phool Singh to surrender surplus land contrary to the provisions of the Act. We are, therefore, of the opinion that the said order this Court is not capable of nor can it be construed as overriding or superseding the provisions of the Act. The choice referred to in the order of this Court is the choice referred to in Section 12-A(d) and not independent of it 8. The view taken by us is supported by an order of this Court in Kamlesh Kumari v. State of U. P. It is a short order and it reads thus "The short point taken by Mr. Ashok Sen in support of the petition is that even assuming that the finding of the Prescribed Authority that the transfer was not bona fide is correct, the Prescribed Authority was in error in not excluding the land said to have been transferred from the surplus area. The land which was the subject-matter of transfer was covered by Plot No. 460. The contention is well founded and must prevail. In these circumstances, we set aside the judgment of the High Court and that of the Prescribed Authority and remit the case to the Prescribed Authority to decide the surplus land in accordance with Section 12-A(d) of the Act by excluding the area which was the subject of transfer as far as possible 2. The appeal is disposed of accordingly Order accordingly. " * | 1[ds]6. A combined reading ofn (6) of Section 5 and clause (d) of the proviso to SectionA yields the following position (insofar as it is relevant for the purpose of this appeal)(a) In determining the ceiling area applicable to a, any transfer of land made after1 shall be ignored and such transferred land shall be included in the holding of the transferor except where such transfer is saved by the proviso ton (6) of Section 5;(b) In the matter of surrender, however, the Prescribed Authority is entitled to insist that ther surrender land which is not ther of transfer referred to in Section 5(6);(c) If, however, surrender of surplus land by ther is not possible or feasible without including the transferred land, then the Prescribed Authority will accept such surrender, in which event transfer of such land shall be deemed to be null and void;(d) Where the Prescribed Authority accepts the surrender of transferred land, the transferee is entitled to compensation and other rights as are provided inThe object of the above provisions is quite clear and consistent. Any transfer effected after1 shall be ignored for the purpose of determining the ceiling area of the, but in the matter of surrender, the Government does not want, as far as possible, to accept surrender of transferred land. This may be for the reason that acceptance of surrender of transferred land is likely to lead to complications and disputes; the Government wants to accept the surrender of lands which are free of any such controversy. But if that does not prove possible, the Government will accept the surrender land even, in which event the transfer of such land shall be treated as null and void so as to vest clear title in the Government. The transferee of a land so surrendered is entitled to claim the compensation money and other rights mentioned ine (i) of clause (d)7. In the light of the above provisions, the Authorities ought to have examined the offer of surrender made by the respondent, Phool Singh in accordance therewith. He must be asked to surrender lands which are not ther of transfer. Only where the Prescribed Authority is satisfied that surrender of surplus land is not possible without including the transferred land, will he accept the surrender land, to the extent necessarywith the necessary consequences flowing therefrom. The High Court and Authorities under the Act, however, have not followed this course because they felt that the order of this Court dated1 entitles the respondent Phool Singh to surrender such land as he chooses. We are of the opinion that they were not right in construing this Courts order in the above manner. Firstly, the appellant herein was not heard (he says that he was not even a party to the said SLP) before passing such order. Secondly, the said order cannot be understood as laying down a proposition contrary to law. All that it says is that the petitioner therein, i. e., respondent Phool Singh "will be entitled to choice in respect of plots forming ther of the sale deed". The said words are not capable of being construed as authorising Phool Singh to surrender the transferred land even if he is in a position to comply with the requirement of surrender of surplus land without touching the transferred land. To repeat, the order of this Court cannot and should not be construed in a manner inconsistent with the provisions of the Act. This Court could not have contemplated passing an order contrary to the provisions of the Act or to authorise the respondent Phool Singh to surrender surplus land contrary to the provisions of the Act. We are, therefore, of the opinion that the said order this Court is not capable of nor can it be construed as overriding or superseding the provisions of the Act. The choice referred to in the order of this Court is the choice referred to in Section) and not independent of it | 1 | 2,239 | 749 | ### 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:
surplus land, be deemed to be and always to have been void, and - (i) it shall be open to the transferee to claim refund of the proportionate amount of consideration, if any, advanced by him to the transferor, and such amount shall be charged on the amount payable to the transferor under Section 17 and also on any land retained by the transferor within the ceiling area, which shall be liable to be sold in satisfaction of the charge, notwithstanding anything contained in Section 153 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950; (ii) any party to the partition (other than the tenure-holder in respect of whom the surplus land has been determined) whose land is included in surplus land of the said tenure-holder, shall be entitled to have the partition reopened. " 6. A combined reading of sub-section (6) of Section 5 and clause (d) of the proviso to Section 12-A yields the following position (insofar as it is relevant for the purpose of this appeal) (a) In determining the ceiling area applicable to a tenure-holder, any transfer of land made after 24-1-1971 shall be ignored and such transferred land shall be included in the holding of the transferor except where such transfer is saved by the proviso to sub-section (6) of Section 5;(b) In the matter of surrender, however, the Prescribed Authority is entitled to insist that the tenure-holder surrender land which is not the subject-matter of transfer referred to in Section 5(6); (c) If, however, surrender of surplus land by the tenure-holder is not possible or feasible without including the transferred land, then the Prescribed Authority will accept such surrender, in which event transfer of such land shall be deemed to be null and void; (d) Where the Prescribed Authority accepts the surrender of transferred land, the transferee is entitled to compensation and other rights as are provided in sub-clause (1) of clause (d) of the proviso to Section 12-A The object of the above provisions is quite clear and consistent. Any transfer effected after 24-1-1971 shall be ignored for the purpose of determining the ceiling area of the tenure-holder, but in the matter of surrender, the Government does not want, as far as possible, to accept surrender of transferred land. This may be for the reason that acceptance of surrender of transferred land is likely to lead to complications and disputes; the Government wants to accept the surrender of lands which are free of any such controversy. But if that does not prove possible, the Government will accept the surrender land even, in which event the transfer of such land shall be treated as null and void so as to vest clear title in the Government. The transferee of a land so surrendered is entitled to claim the compensation money and other rights mentioned in sub-clause (i) of clause (d) 7. In the light of the above provisions, the Authorities ought to have examined the offer of surrender made by the respondent, Phool Singh in accordance therewith. He must be asked to surrender lands which are not the subject-matter of transfer. Only where the Prescribed Authority is satisfied that surrender of surplus land is not possible without including the transferred land, will he accept the surrender land, to the extent necessary -with the necessary consequences flowing therefrom. The High Court and Authorities under the Act, however, have not followed this course because they felt that the order of this Court dated 7-5-1981 entitles the respondent Phool Singh to surrender such land as he chooses. We are of the opinion that they were not right in construing this Courts order in the above manner. Firstly, the appellant herein was not heard (he says that he was not even a party to the said SLP) before passing such order. Secondly, the said order cannot be understood as laying down a proposition contrary to law. All that it says is that the petitioner therein, i. e., respondent Phool Singh "will be entitled to choice in respect of plots forming the subject-matter of the sale deed". The said words are not capable of being construed as authorising Phool Singh to surrender the transferred land even if he is in a position to comply with the requirement of surrender of surplus land without touching the transferred land. To repeat, the order of this Court cannot and should not be construed in a manner inconsistent with the provisions of the Act. This Court could not have contemplated passing an order contrary to the provisions of the Act or to authorise the respondent Phool Singh to surrender surplus land contrary to the provisions of the Act. We are, therefore, of the opinion that the said order this Court is not capable of nor can it be construed as overriding or superseding the provisions of the Act. The choice referred to in the order of this Court is the choice referred to in Section 12-A(d) and not independent of it 8. The view taken by us is supported by an order of this Court in Kamlesh Kumari v. State of U. P. It is a short order and it reads thus "The short point taken by Mr. Ashok Sen in support of the petition is that even assuming that the finding of the Prescribed Authority that the transfer was not bona fide is correct, the Prescribed Authority was in error in not excluding the land said to have been transferred from the surplus area. The land which was the subject-matter of transfer was covered by Plot No. 460. The contention is well founded and must prevail. In these circumstances, we set aside the judgment of the High Court and that of the Prescribed Authority and remit the case to the Prescribed Authority to decide the surplus land in accordance with Section 12-A(d) of the Act by excluding the area which was the subject of transfer as far as possible 2. The appeal is disposed of accordingly Order accordingly. " *
### Response:
1
### Explanation:
6. A combined reading ofn (6) of Section 5 and clause (d) of the proviso to SectionA yields the following position (insofar as it is relevant for the purpose of this appeal)(a) In determining the ceiling area applicable to a, any transfer of land made after1 shall be ignored and such transferred land shall be included in the holding of the transferor except where such transfer is saved by the proviso ton (6) of Section 5;(b) In the matter of surrender, however, the Prescribed Authority is entitled to insist that ther surrender land which is not ther of transfer referred to in Section 5(6);(c) If, however, surrender of surplus land by ther is not possible or feasible without including the transferred land, then the Prescribed Authority will accept such surrender, in which event transfer of such land shall be deemed to be null and void;(d) Where the Prescribed Authority accepts the surrender of transferred land, the transferee is entitled to compensation and other rights as are provided inThe object of the above provisions is quite clear and consistent. Any transfer effected after1 shall be ignored for the purpose of determining the ceiling area of the, but in the matter of surrender, the Government does not want, as far as possible, to accept surrender of transferred land. This may be for the reason that acceptance of surrender of transferred land is likely to lead to complications and disputes; the Government wants to accept the surrender of lands which are free of any such controversy. But if that does not prove possible, the Government will accept the surrender land even, in which event the transfer of such land shall be treated as null and void so as to vest clear title in the Government. The transferee of a land so surrendered is entitled to claim the compensation money and other rights mentioned ine (i) of clause (d)7. In the light of the above provisions, the Authorities ought to have examined the offer of surrender made by the respondent, Phool Singh in accordance therewith. He must be asked to surrender lands which are not ther of transfer. Only where the Prescribed Authority is satisfied that surrender of surplus land is not possible without including the transferred land, will he accept the surrender land, to the extent necessarywith the necessary consequences flowing therefrom. The High Court and Authorities under the Act, however, have not followed this course because they felt that the order of this Court dated1 entitles the respondent Phool Singh to surrender such land as he chooses. We are of the opinion that they were not right in construing this Courts order in the above manner. Firstly, the appellant herein was not heard (he says that he was not even a party to the said SLP) before passing such order. Secondly, the said order cannot be understood as laying down a proposition contrary to law. All that it says is that the petitioner therein, i. e., respondent Phool Singh "will be entitled to choice in respect of plots forming ther of the sale deed". The said words are not capable of being construed as authorising Phool Singh to surrender the transferred land even if he is in a position to comply with the requirement of surrender of surplus land without touching the transferred land. To repeat, the order of this Court cannot and should not be construed in a manner inconsistent with the provisions of the Act. This Court could not have contemplated passing an order contrary to the provisions of the Act or to authorise the respondent Phool Singh to surrender surplus land contrary to the provisions of the Act. We are, therefore, of the opinion that the said order this Court is not capable of nor can it be construed as overriding or superseding the provisions of the Act. The choice referred to in the order of this Court is the choice referred to in Section) and not independent of it
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GARG BUILDERS Vs. BHARAT HEAVY ELECTRICALS LIMITED | not be payable, the Arbitral Tribunal cannot award interest between the date on which the cause of action arose to the date of the award. 14. Bharat Heavy Electricals Limited v. Globe Hi-Fabs Limited (2015) 5 SCC 718 is an identical case where this Court has held as under : 16. In the present case we noticed that the clause barring interest is very widely worded. It uses the words any amount due to the contractor by the employer. In our opinion, these words cannot be read as ejusdem generis along with the earlier words earnest money or security deposit. 15. In Sri Chittaranjan Maity v. Union of India (2017) 9 SCC 611 it was categorically held that if a contract prohibits award of interest for pre-award period, the arbitrator cannot award interest for the said period. 16. Therefore, if the contract contains a specific clause which expressly bars payment of interest, then it is not open for the arbitrator to grant pendente lite interest. The judgment on which reliance was placed by the learned counsel for the appellant in Ambica Construction (supra) has no application to the instant case because Ambica Construction was decided under the Arbitration Act 1940 whereas the instant case falls under the 1996 Act. This has been clarified in Sri Chittaranjan Maity (supra) as under : 16. Relying on a decision of this Court in Ambica Construction v. Union of India, (2017) 14 SCC 323, the learned Senior Counsel for the appellant submits that mere bar to award interest on the amounts payable under the contract would not be sufficient to deny payment on pendente lite interest. Therefore, the arbitrator was justified in awarding the pendente lite interest. However, it is not clear from Ambica Construction (supra) as to whether it was decided under the Arbitration Act, 1940 (for short the 1940 Act) or under the 1996 Act. It has relied on a judgment of Constitution Bench in State of Orissa v. G.C. Roy, (1992) 1 SCC 508 . This judgment was with reference to the 1940 Act. In the 1940 Act, there was no provision which prohibited the arbitrator from awarding interest for the pre- reference, pendente lite or post-award period, whereas the 1996 Act contains a specific provision which says that if the agreement prohibits award of interest for the pre-award period, the arbitrator cannot award interest for the said period. Therefore, the decision in Ambica Construction (supra) cannot be made applicable to the instant case. 17. The decision in Raveechee and Company (supra) relied on by the learned counsel for the appellant is again under the Arbitration Act 1940 which has no application to the facts of the present case. 18. Having regard to the above, we are of the view that the High Court was justified in rejecting the claim of the appellant seeking pendente lite interest on the award amount. 19. This takes us to the next question as to whether Clause 17 of the Contract is ultra vires in terms of Section 28 of the Indian Contract Act, 1872. According to Section 28, a contract is void to the extent it restricts absolutely a party from enforcing his rights by usual proceedings in ordinary courts or if it limits the time within which he may enforce his rights. Exception I to this section contains a rule that a contract by which two or more persons agree that any dispute which has arisen or which may arise between them in respect of any subject or class of subjects shall be referred to arbitration is not illegal. The question, therefore, is whether the contracts barring payment of interest extinguish the rights of the parties. Exception 1 to Section 28 reads as under : Exception 1: Saving of contract to refer to arbitration dispute that may arise. – This section shall not render illegal a contract, by which two or more persons agree that any dispute which may arise between them in respect of any subject or class of subjects shall be referred to arbitration, and that only the amount awarded in such arbitration shall be recoverable in respect of the dispute so referred. 20. Exception I to Section 28 saves contracts where the right to move the Court for appropriate relief is restricted but where the parties have agreed to resolve their dispute through arbitration. Thus, a lawful agreement to refer the matter to arbitration can be made a condition precedent before going to courts and it does not violate Section 28. No cause of action then accrues until the Arbitrator has made the award and the only amount awarded in such arbitration is recoverable in respect of the dispute so referred. Section 31(7)(a) of the 1996 Act which allows parties to waive any claim to interest including pendente lite and the power of the Arbitrator to grant interest is subject to the agreement of the parties. 21. It is pertinent to note that interest payments are governed in general by the Interest Act, 1978 in addition to the specific statutes that govern an impugned matter. Section 2 (a) of the Interest Act defines a Court which includes both a Tribunal and an Arbitrator. In turn, Section 3 allows a Court to grant interest at prevailing interest rates in various cases. The provisions of Section 3 (3) of the Interest Act, 1978 explicitly allows the parties to waive their claim to an interest by virtue of an agreement. Section 3(3)(a)(ii) states that the Interest Act will not apply to situations where the payment of interest is barred by virtue of an express agreement. 22. Thus, when there is an express statutory permission for the parties to contract out of receiving interest and they have done so without any vitiation of free consent, it is not open for the Arbitrator to grant pendent lite interest. We are of the considered opinion that Clause 17 of the contract is not ultra vires in terms of Section 28 of the Indian Contract Act, 1872. | 0[ds]10. We have carefully considered the submissions of the learned counsel for both the parties made at the Bar. The law relating to award of pendente lite interest by Arbitrator under the 1996 Act is no longer res integra.11. It is clear from the above provision that if the contract prohibits pre-reference and pendente lite interest, the arbitrator cannot award interest for the said period. In the present case, clause barring interest is very clear and categorical. It uses the expression any moneys due to the contractor by the employer which includes the amount awarded by the arbitrator.12. In Sayeed Ahmed and Company v. State of Uttar Pradesh & Ors. (2009) 12 SCC 26 this Court has held that a provision has been made under Section 31(7)(a) of the 1996 Act in relation to the power of the arbitrator to award interest. As per this section, if the contract bars payment of interest, the arbitrator cannot award interest from the date of cause of action till the date of award.14. Bharat Heavy Electricals Limited v. Globe Hi-Fabs Limited (2015) 5 SCC 718 is an identical case where this Court has held as under :16. In the present case we noticed that the clause barring interest is very widely worded. It uses the words any amount due to the contractor by the employer. In our opinion, these words cannot be read as ejusdem generis along with the earlier words earnest money or security deposit.16. Therefore, if the contract contains a specific clause which expressly bars payment of interest, then it is not open for the arbitrator to grant pendente lite interest. The judgment on which reliance was placed by the learned counsel for the appellant in Ambica Construction (supra) has no application to the instant case because Ambica Construction was decided under the Arbitration Act 1940 whereas the instant case falls under the 1996 Act. This has been clarified in Sri Chittaranjan Maity (supra) as under :16. Relying on a decision of this Court in Ambica Construction v. Union of India, (2017) 14 SCC 323, the learned Senior Counsel for the appellant submits that mere bar to award interest on the amounts payable under the contract would not be sufficient to deny payment on pendente lite interest. Therefore, the arbitrator was justified in awarding the pendente lite interest. However, it is not clear from Ambica Construction (supra) as to whether it was decided under the Arbitration Act, 1940 (for short the 1940 Act) or under the 1996 Act. It has relied on a judgment of Constitution Bench in State of Orissa v. G.C. Roy, (1992) 1 SCC 508 . This judgment was with reference to the 1940 Act. In the 1940 Act, there was no provision which prohibited the arbitrator from awarding interest for the pre- reference, pendente lite or post-award period, whereas the 1996 Act contains a specific provision which says that if the agreement prohibits award of interest for the pre-award period, the arbitrator cannot award interest for the said period. Therefore, the decision in Ambica Construction (supra) cannot be made applicable to the instant case.17. The decision in Raveechee and Company (supra) relied on by the learned counsel for the appellant is again under the Arbitration Act 1940 which has no application to the facts of the present case.18. Having regard to the above, we are of the view that the High Court was justified in rejecting the claim of the appellant seeking pendente lite interest on the award amount.20. Exception I to Section 28 saves contracts where the right to move the Court for appropriate relief is restricted but where the parties have agreed to resolve their dispute through arbitration. Thus, a lawful agreement to refer the matter to arbitration can be made a condition precedent before going to courts and it does not violate Section 28. No cause of action then accrues until the Arbitrator has made the award and the only amount awarded in such arbitration is recoverable in respect of the dispute so referred. Section 31(7)(a) of the 1996 Act which allows parties to waive any claim to interest including pendente lite and the power of the Arbitrator to grant interest is subject to the agreement of the parties.21. It is pertinent to note that interest payments are governed in general by the Interest Act, 1978 in addition to the specific statutes that govern an impugned matter. Section 2 (a) of the Interest Act defines a Court which includes both a Tribunal and an Arbitrator. In turn, Section 3 allows a Court to grant interest at prevailing interest rates in various cases. The provisions of Section 3 (3) of the Interest Act, 1978 explicitly allows the parties to waive their claim to an interest by virtue of an agreement. Section 3(3)(a)(ii) states that the Interest Act will not apply to situations where the payment of interest is barred by virtue of an express agreement.22. Thus, when there is an express statutory permission for the parties to contract out of receiving interest and they have done so without any vitiation of free consent, it is not open for the Arbitrator to grant pendent lite interest. We are of the considered opinion that Clause 17 of the contract is not ultra vires in terms of Section 28 of the Indian Contract Act, 1872. | 0 | 2,664 | 1,003 | ### 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:
not be payable, the Arbitral Tribunal cannot award interest between the date on which the cause of action arose to the date of the award. 14. Bharat Heavy Electricals Limited v. Globe Hi-Fabs Limited (2015) 5 SCC 718 is an identical case where this Court has held as under : 16. In the present case we noticed that the clause barring interest is very widely worded. It uses the words any amount due to the contractor by the employer. In our opinion, these words cannot be read as ejusdem generis along with the earlier words earnest money or security deposit. 15. In Sri Chittaranjan Maity v. Union of India (2017) 9 SCC 611 it was categorically held that if a contract prohibits award of interest for pre-award period, the arbitrator cannot award interest for the said period. 16. Therefore, if the contract contains a specific clause which expressly bars payment of interest, then it is not open for the arbitrator to grant pendente lite interest. The judgment on which reliance was placed by the learned counsel for the appellant in Ambica Construction (supra) has no application to the instant case because Ambica Construction was decided under the Arbitration Act 1940 whereas the instant case falls under the 1996 Act. This has been clarified in Sri Chittaranjan Maity (supra) as under : 16. Relying on a decision of this Court in Ambica Construction v. Union of India, (2017) 14 SCC 323, the learned Senior Counsel for the appellant submits that mere bar to award interest on the amounts payable under the contract would not be sufficient to deny payment on pendente lite interest. Therefore, the arbitrator was justified in awarding the pendente lite interest. However, it is not clear from Ambica Construction (supra) as to whether it was decided under the Arbitration Act, 1940 (for short the 1940 Act) or under the 1996 Act. It has relied on a judgment of Constitution Bench in State of Orissa v. G.C. Roy, (1992) 1 SCC 508 . This judgment was with reference to the 1940 Act. In the 1940 Act, there was no provision which prohibited the arbitrator from awarding interest for the pre- reference, pendente lite or post-award period, whereas the 1996 Act contains a specific provision which says that if the agreement prohibits award of interest for the pre-award period, the arbitrator cannot award interest for the said period. Therefore, the decision in Ambica Construction (supra) cannot be made applicable to the instant case. 17. The decision in Raveechee and Company (supra) relied on by the learned counsel for the appellant is again under the Arbitration Act 1940 which has no application to the facts of the present case. 18. Having regard to the above, we are of the view that the High Court was justified in rejecting the claim of the appellant seeking pendente lite interest on the award amount. 19. This takes us to the next question as to whether Clause 17 of the Contract is ultra vires in terms of Section 28 of the Indian Contract Act, 1872. According to Section 28, a contract is void to the extent it restricts absolutely a party from enforcing his rights by usual proceedings in ordinary courts or if it limits the time within which he may enforce his rights. Exception I to this section contains a rule that a contract by which two or more persons agree that any dispute which has arisen or which may arise between them in respect of any subject or class of subjects shall be referred to arbitration is not illegal. The question, therefore, is whether the contracts barring payment of interest extinguish the rights of the parties. Exception 1 to Section 28 reads as under : Exception 1: Saving of contract to refer to arbitration dispute that may arise. – This section shall not render illegal a contract, by which two or more persons agree that any dispute which may arise between them in respect of any subject or class of subjects shall be referred to arbitration, and that only the amount awarded in such arbitration shall be recoverable in respect of the dispute so referred. 20. Exception I to Section 28 saves contracts where the right to move the Court for appropriate relief is restricted but where the parties have agreed to resolve their dispute through arbitration. Thus, a lawful agreement to refer the matter to arbitration can be made a condition precedent before going to courts and it does not violate Section 28. No cause of action then accrues until the Arbitrator has made the award and the only amount awarded in such arbitration is recoverable in respect of the dispute so referred. Section 31(7)(a) of the 1996 Act which allows parties to waive any claim to interest including pendente lite and the power of the Arbitrator to grant interest is subject to the agreement of the parties. 21. It is pertinent to note that interest payments are governed in general by the Interest Act, 1978 in addition to the specific statutes that govern an impugned matter. Section 2 (a) of the Interest Act defines a Court which includes both a Tribunal and an Arbitrator. In turn, Section 3 allows a Court to grant interest at prevailing interest rates in various cases. The provisions of Section 3 (3) of the Interest Act, 1978 explicitly allows the parties to waive their claim to an interest by virtue of an agreement. Section 3(3)(a)(ii) states that the Interest Act will not apply to situations where the payment of interest is barred by virtue of an express agreement. 22. Thus, when there is an express statutory permission for the parties to contract out of receiving interest and they have done so without any vitiation of free consent, it is not open for the Arbitrator to grant pendent lite interest. We are of the considered opinion that Clause 17 of the contract is not ultra vires in terms of Section 28 of the Indian Contract Act, 1872.
### Response:
0
### Explanation:
10. We have carefully considered the submissions of the learned counsel for both the parties made at the Bar. The law relating to award of pendente lite interest by Arbitrator under the 1996 Act is no longer res integra.11. It is clear from the above provision that if the contract prohibits pre-reference and pendente lite interest, the arbitrator cannot award interest for the said period. In the present case, clause barring interest is very clear and categorical. It uses the expression any moneys due to the contractor by the employer which includes the amount awarded by the arbitrator.12. In Sayeed Ahmed and Company v. State of Uttar Pradesh & Ors. (2009) 12 SCC 26 this Court has held that a provision has been made under Section 31(7)(a) of the 1996 Act in relation to the power of the arbitrator to award interest. As per this section, if the contract bars payment of interest, the arbitrator cannot award interest from the date of cause of action till the date of award.14. Bharat Heavy Electricals Limited v. Globe Hi-Fabs Limited (2015) 5 SCC 718 is an identical case where this Court has held as under :16. In the present case we noticed that the clause barring interest is very widely worded. It uses the words any amount due to the contractor by the employer. In our opinion, these words cannot be read as ejusdem generis along with the earlier words earnest money or security deposit.16. Therefore, if the contract contains a specific clause which expressly bars payment of interest, then it is not open for the arbitrator to grant pendente lite interest. The judgment on which reliance was placed by the learned counsel for the appellant in Ambica Construction (supra) has no application to the instant case because Ambica Construction was decided under the Arbitration Act 1940 whereas the instant case falls under the 1996 Act. This has been clarified in Sri Chittaranjan Maity (supra) as under :16. Relying on a decision of this Court in Ambica Construction v. Union of India, (2017) 14 SCC 323, the learned Senior Counsel for the appellant submits that mere bar to award interest on the amounts payable under the contract would not be sufficient to deny payment on pendente lite interest. Therefore, the arbitrator was justified in awarding the pendente lite interest. However, it is not clear from Ambica Construction (supra) as to whether it was decided under the Arbitration Act, 1940 (for short the 1940 Act) or under the 1996 Act. It has relied on a judgment of Constitution Bench in State of Orissa v. G.C. Roy, (1992) 1 SCC 508 . This judgment was with reference to the 1940 Act. In the 1940 Act, there was no provision which prohibited the arbitrator from awarding interest for the pre- reference, pendente lite or post-award period, whereas the 1996 Act contains a specific provision which says that if the agreement prohibits award of interest for the pre-award period, the arbitrator cannot award interest for the said period. Therefore, the decision in Ambica Construction (supra) cannot be made applicable to the instant case.17. The decision in Raveechee and Company (supra) relied on by the learned counsel for the appellant is again under the Arbitration Act 1940 which has no application to the facts of the present case.18. Having regard to the above, we are of the view that the High Court was justified in rejecting the claim of the appellant seeking pendente lite interest on the award amount.20. Exception I to Section 28 saves contracts where the right to move the Court for appropriate relief is restricted but where the parties have agreed to resolve their dispute through arbitration. Thus, a lawful agreement to refer the matter to arbitration can be made a condition precedent before going to courts and it does not violate Section 28. No cause of action then accrues until the Arbitrator has made the award and the only amount awarded in such arbitration is recoverable in respect of the dispute so referred. Section 31(7)(a) of the 1996 Act which allows parties to waive any claim to interest including pendente lite and the power of the Arbitrator to grant interest is subject to the agreement of the parties.21. It is pertinent to note that interest payments are governed in general by the Interest Act, 1978 in addition to the specific statutes that govern an impugned matter. Section 2 (a) of the Interest Act defines a Court which includes both a Tribunal and an Arbitrator. In turn, Section 3 allows a Court to grant interest at prevailing interest rates in various cases. The provisions of Section 3 (3) of the Interest Act, 1978 explicitly allows the parties to waive their claim to an interest by virtue of an agreement. Section 3(3)(a)(ii) states that the Interest Act will not apply to situations where the payment of interest is barred by virtue of an express agreement.22. Thus, when there is an express statutory permission for the parties to contract out of receiving interest and they have done so without any vitiation of free consent, it is not open for the Arbitrator to grant pendent lite interest. We are of the considered opinion that Clause 17 of the contract is not ultra vires in terms of Section 28 of the Indian Contract Act, 1872.
|
K. Gopinathan Nair and Others Vs. State of Kerala | submitted that the CCI was under an obligation to allot the requisite quantity of imported cashewnuts to the local users for whose benefits the goods were imported. But that will not reflect that local user was the importer. Agreement between CCI and local user may give a contractual right to the local user to enforce its demands against CCI and in a given case it may be enforced by specific performance against CCI. That claim, however, has nothing to do with foreign exporter who only deals with CCI as bulk importer of the goods and against whom the local user cannot have any legally enforceable right. All the aforesaid features which are well established on record leave no room for doubt that it is on account of the sale to CCI by foreign exporter that the raw cashew get imported in India and the importer is CCI and not the local user. It is the demand of the local users which prompted the canalising agency like CCI to place orders for import of the quantities concerned. But CCI deals with foreign exporter on its own and gets bulk imports of cashewnuts. It is the sale to the CCI by the foreign exporter or conversely the purchase by the CCI of the raw cashew from the foreign exporter that occasions the movement of raw cashew from African countries to India. The imported cashew remains of the ownership of the importer CCI and only on retirement of documents on payment of value of the allotted cashew by the local users and on their getting the goods cleared from customs that the property in the imported goods concerned would pass from CCI to the local users. Thus there are two clear transactions. One transaction is the import of raw cashew by CCI from foreign exporters. The second transaction which is back-to-back transaction is of sale by the canalising agency like CCI which is the wholesale importer in favour of the localusers for whom the goods are indented. That independent sale which may be based even on a prior agreement of sale by CCI to local users would remain an independent transaction between importer CCI and the local purchaser, namely, the local user. There is no privity of contract between the local users on the one hand and the foreign exporter on the other. These two transactions cannot be said to be so integrally interconnected as to represent one composite transaction in the course of import of raw cashewnuts as tried to be submitted by the learned Senior Counsel for the appellants. On the facts of these cases, therefore, the decisions of the Constitution Benches of this court in Serajuddin case and in the case of Binani Bros. get squarely attracted and as a result these sales by the CCI to the local users go out of the sweep of the exemption provisions engrafted by Section 5(2) of the Central Sales Tax Act. The conclusions to which the Kerala and Karnataka High Courts reached, therefore, cannot be faulted. 20. The alternative contention canvassed on behalf of the appellants by the learned Senior Counsel Shri Poti based on Section 2(ah) of the Central Sales Tax Act which defines "crossing the customs frontiers of India" as crossing the limits of the area of a customs station in which imported goods or exported goods are ordinarily kept before clearance by customs authorities, also cannot be of any avail to the appellants for the simple reason that this amendment was brought on the statute-book much after the relevant assessment years. This amendment which sought to confer a substantial benefit to the local users cannot be said to be a procedural amendment which could have any retrospective effect. On the contrary this substantive provision is of a remedial nature and it cannot have any retrospective effect by implication. The provision is also not expressly made retrospective. As laid down by a three-member Bench of this Court in the case of R. Rajagopal Reddy v. Padmini Chandrasekharan wherein one of us, S. B. Majmudar, J., spoke for the Bench, that it is now well settled that where a statutory provision which is not expressly made retrospective by the legislature seeks to affect vested rights and corresponding obligations of parties, such provision cannot be said to have any retrospective effect by necessary implication. In para 15 of the Report reliance was placed on an a earlier decision of this Court in the case of Garikapati Veeraya v. N. Subbiah Choudhary 2 MLJ (SC) 1 wherein Chief Justice S. R. Das speaking for this Court had made following pertinent observations : "The golden rule of construction is that, in the absence of anything in the enactment to show that it is to have retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act was passed." * Consequently it cannot be said that the enactment of a new definition regarding crossing the customs frontiers of India as laid down by Section 2(ab) of the Central Sales Tax Act for considering the liability to pay sales tax could be legitimately pressed in service for deciding the question of sales tax liability of the appellants during the assessment years when such definition was not on the Statute-Book. For all these reasons no case is made out by the appellants for our interference in these cases. With great respect to our esteemed colleague Sujata V. Manohar, J., it is not possible to agree with her conclusion that there is a direct and inseverable link between the transaction of sale and the import of goods on account of the nature of the understanding between the parties as also by reason of the canalising scheme pertaining to the import of cashewnuts. Nor it is possible for us to agree with her finding that these transactions are covered by the exemption provisions of Section 5(2) of the Central Sales Tax Act. | 0[ds]15. If the aforesaid conditions are satisfied then obviously the transaction of sale or purchase would be in the realm of sale or purchase in the course of import entitling it to earn exemption under Section 5(2) of the Central Sales Tax Act. But if on the contrary the transactions between the foreign exporter and the local users in India get transmitted through an independent canalising import agency which enters into back-to-back contracts and there is no direct linkage or causal connection between the export by foreign exporter and the receipt of the imported goods in India by the local users, the integrity of the entire transaction would get disrupted and would be substituted by two independent transactions, one between the canalising agency and the foreign exporter which would make the canalising agency the owner of the goods imported and the other between the import canalising agency and the local users for whose benefit the goods were imported by the wholesale importer being the canalising agency. In such a case the sale by the canalising agency to the local users would not be a sale in the course of import but would be a sale because of or by import which would not be covered by the exemption provision of Section 5 sub-section (2) of the Central Sales Tax Act16. On the facts of these cases and in the light of the propositions enumerated above it is impossible to accept the contention of the learned Senior Counsel for the appellants that the sales in the present cases effected by the CCI in favour of the local users were in course of import of raw cashew from African countriesConsequently it cannot be said that the enactment of a new definition regarding crossing the customs frontiers of India as laid down by Section 2(ab) of the Central Sales Tax Act for considering the liability to pay sales tax could be legitimately pressed in service for deciding the question of sales tax liability of the appellants during the assessment years when such definition was not on the Statute-Book. For all these reasons no case is made out by the appellants for our interference in these cases. With great respect to our esteemed colleague Sujata V. Manohar, J., it is not possible to agree with her conclusion that there is a direct and inseverable link between the transaction of sale and the import of goods on account of the nature of the understanding between the parties as also by reason of the canalising scheme pertaining to the import of cashewnuts. Nor it is possible for us to agree with her finding that these transactions are covered by the exemption provisions of Section 5(2) of the Central Sales Tax Act27. Thus it is clear that although the canalising agency placed a bulk order for the import of cashewnuts and opened a letter of credit in favour of the foreign sellers, the bulk order so placed was a sum total of the requirements of all the processors of cashewnuts in whose favour allotment orders were issued. The Cashew Corporation of India had from the inception marked separately each lot imported by it in favour of each allottee. It had also in turn, prepared a corresponding set of documentation in favour of the allottee and the allottee was required to open a corresponding letter of credit in favour of the Cashew Corporation of India in respect of the lot being imported on its behalf. The allottees also paid the corresponding insurance a premium for the marine insurance taken out by the Cashew Corporation of India pertaining to the import of cashewnuts. | 0 | 11,373 | 638 | ### 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:
submitted that the CCI was under an obligation to allot the requisite quantity of imported cashewnuts to the local users for whose benefits the goods were imported. But that will not reflect that local user was the importer. Agreement between CCI and local user may give a contractual right to the local user to enforce its demands against CCI and in a given case it may be enforced by specific performance against CCI. That claim, however, has nothing to do with foreign exporter who only deals with CCI as bulk importer of the goods and against whom the local user cannot have any legally enforceable right. All the aforesaid features which are well established on record leave no room for doubt that it is on account of the sale to CCI by foreign exporter that the raw cashew get imported in India and the importer is CCI and not the local user. It is the demand of the local users which prompted the canalising agency like CCI to place orders for import of the quantities concerned. But CCI deals with foreign exporter on its own and gets bulk imports of cashewnuts. It is the sale to the CCI by the foreign exporter or conversely the purchase by the CCI of the raw cashew from the foreign exporter that occasions the movement of raw cashew from African countries to India. The imported cashew remains of the ownership of the importer CCI and only on retirement of documents on payment of value of the allotted cashew by the local users and on their getting the goods cleared from customs that the property in the imported goods concerned would pass from CCI to the local users. Thus there are two clear transactions. One transaction is the import of raw cashew by CCI from foreign exporters. The second transaction which is back-to-back transaction is of sale by the canalising agency like CCI which is the wholesale importer in favour of the localusers for whom the goods are indented. That independent sale which may be based even on a prior agreement of sale by CCI to local users would remain an independent transaction between importer CCI and the local purchaser, namely, the local user. There is no privity of contract between the local users on the one hand and the foreign exporter on the other. These two transactions cannot be said to be so integrally interconnected as to represent one composite transaction in the course of import of raw cashewnuts as tried to be submitted by the learned Senior Counsel for the appellants. On the facts of these cases, therefore, the decisions of the Constitution Benches of this court in Serajuddin case and in the case of Binani Bros. get squarely attracted and as a result these sales by the CCI to the local users go out of the sweep of the exemption provisions engrafted by Section 5(2) of the Central Sales Tax Act. The conclusions to which the Kerala and Karnataka High Courts reached, therefore, cannot be faulted. 20. The alternative contention canvassed on behalf of the appellants by the learned Senior Counsel Shri Poti based on Section 2(ah) of the Central Sales Tax Act which defines "crossing the customs frontiers of India" as crossing the limits of the area of a customs station in which imported goods or exported goods are ordinarily kept before clearance by customs authorities, also cannot be of any avail to the appellants for the simple reason that this amendment was brought on the statute-book much after the relevant assessment years. This amendment which sought to confer a substantial benefit to the local users cannot be said to be a procedural amendment which could have any retrospective effect. On the contrary this substantive provision is of a remedial nature and it cannot have any retrospective effect by implication. The provision is also not expressly made retrospective. As laid down by a three-member Bench of this Court in the case of R. Rajagopal Reddy v. Padmini Chandrasekharan wherein one of us, S. B. Majmudar, J., spoke for the Bench, that it is now well settled that where a statutory provision which is not expressly made retrospective by the legislature seeks to affect vested rights and corresponding obligations of parties, such provision cannot be said to have any retrospective effect by necessary implication. In para 15 of the Report reliance was placed on an a earlier decision of this Court in the case of Garikapati Veeraya v. N. Subbiah Choudhary 2 MLJ (SC) 1 wherein Chief Justice S. R. Das speaking for this Court had made following pertinent observations : "The golden rule of construction is that, in the absence of anything in the enactment to show that it is to have retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act was passed." * Consequently it cannot be said that the enactment of a new definition regarding crossing the customs frontiers of India as laid down by Section 2(ab) of the Central Sales Tax Act for considering the liability to pay sales tax could be legitimately pressed in service for deciding the question of sales tax liability of the appellants during the assessment years when such definition was not on the Statute-Book. For all these reasons no case is made out by the appellants for our interference in these cases. With great respect to our esteemed colleague Sujata V. Manohar, J., it is not possible to agree with her conclusion that there is a direct and inseverable link between the transaction of sale and the import of goods on account of the nature of the understanding between the parties as also by reason of the canalising scheme pertaining to the import of cashewnuts. Nor it is possible for us to agree with her finding that these transactions are covered by the exemption provisions of Section 5(2) of the Central Sales Tax Act.
### Response:
0
### Explanation:
15. If the aforesaid conditions are satisfied then obviously the transaction of sale or purchase would be in the realm of sale or purchase in the course of import entitling it to earn exemption under Section 5(2) of the Central Sales Tax Act. But if on the contrary the transactions between the foreign exporter and the local users in India get transmitted through an independent canalising import agency which enters into back-to-back contracts and there is no direct linkage or causal connection between the export by foreign exporter and the receipt of the imported goods in India by the local users, the integrity of the entire transaction would get disrupted and would be substituted by two independent transactions, one between the canalising agency and the foreign exporter which would make the canalising agency the owner of the goods imported and the other between the import canalising agency and the local users for whose benefit the goods were imported by the wholesale importer being the canalising agency. In such a case the sale by the canalising agency to the local users would not be a sale in the course of import but would be a sale because of or by import which would not be covered by the exemption provision of Section 5 sub-section (2) of the Central Sales Tax Act16. On the facts of these cases and in the light of the propositions enumerated above it is impossible to accept the contention of the learned Senior Counsel for the appellants that the sales in the present cases effected by the CCI in favour of the local users were in course of import of raw cashew from African countriesConsequently it cannot be said that the enactment of a new definition regarding crossing the customs frontiers of India as laid down by Section 2(ab) of the Central Sales Tax Act for considering the liability to pay sales tax could be legitimately pressed in service for deciding the question of sales tax liability of the appellants during the assessment years when such definition was not on the Statute-Book. For all these reasons no case is made out by the appellants for our interference in these cases. With great respect to our esteemed colleague Sujata V. Manohar, J., it is not possible to agree with her conclusion that there is a direct and inseverable link between the transaction of sale and the import of goods on account of the nature of the understanding between the parties as also by reason of the canalising scheme pertaining to the import of cashewnuts. Nor it is possible for us to agree with her finding that these transactions are covered by the exemption provisions of Section 5(2) of the Central Sales Tax Act27. Thus it is clear that although the canalising agency placed a bulk order for the import of cashewnuts and opened a letter of credit in favour of the foreign sellers, the bulk order so placed was a sum total of the requirements of all the processors of cashewnuts in whose favour allotment orders were issued. The Cashew Corporation of India had from the inception marked separately each lot imported by it in favour of each allottee. It had also in turn, prepared a corresponding set of documentation in favour of the allottee and the allottee was required to open a corresponding letter of credit in favour of the Cashew Corporation of India in respect of the lot being imported on its behalf. The allottees also paid the corresponding insurance a premium for the marine insurance taken out by the Cashew Corporation of India pertaining to the import of cashewnuts.
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Western India Match Company Limited Vs. Third Industrial Tribunal, West Bengal and Others | Krishna Iyer, J.1. This is an appeal, by special leave, from a judgment of the High Court in writ appeal by a Division Bench which confirmed the judgment of a learned single Judge of that Court who, in turn refused to interfere with the award of the Industrial Tribunal.2. The facts briefly are : that the 2nd respondent was an employee under the appellant for a long number of years. There was no blemish in his service, and Shri Sachin Choudhury for the appellant has very fairly stated that there was no complaint against the services of the 2nd respondent while he was employed by it. But the 2nd respondent fell ill and applied for leave. It so happened that his illness persisted for a long time and the management, quite, rightly, granted him leave from time to time. On 4th November, 1963 his leave expired and on 5th November, 1963 the management invoking a clause in the contract of employment, terminated his employment. It is that order of termination that was set aside by the Industrial Tribunal and affirmed from Court to Court up to now. The particular clause in the contract which was relied on by the management stated that :"It was open to the employer to determine the employment at any time without any notice or payment in lieu of notice in the event of ......You become from any cause incapacitated by a longer period than two calendar months from properly discharging your duties."The Courts below held, and quite rightly in our view, that since the employee was all along on leave granted by the employer no question of incapacity or being incapacitated from properly discharging his duties arose. It is obvious that when an employee is on leave he is not called upon to discharge any duties and, therefore, the question of the capacity to discharge duties does not fall for consideration. The clause relied upon comes into play only when an employee who has to discharge his duties fails to do so and the employer makes a judgment of the situation and comes to the conclusion that it is on account of an incapacity which will last longer than two months that the failure to discharge his duties has arisen. We are, therefore, satisfied that the clauses could not have been invoked and the termination of service, was bad in law.3. Even so, the further question arises as to whether the employee should be recompensated with full wages and other benefits until the date of reinstatement. We have to be realistic in this jurisdiction although in industrial law when termination of service is found to be illegal, the ordinary rule is reinstatement. We direct reinstatement in affirmance of the order passed by the High Court and the Industrial Tribunal. But the High Court as well as the Industrial Tribunal have also awarded full wages and other benefits during the period the employees services had stood terminated. It is right for us to remember ....... and Shri Sen Gupta has reminded us of the proposition ..... that sitting in appeal under Art. 136 against an order of the High Court passed under Art. 226 we should not lightly interfere with the direction made in the judgment of the High Court unless there is some substantial error, manifest injustice or exceptional circumstance. None having been pointed out, we affirm the finding of the High Court regarding payment of back wages and other benefits up to the date the High Court passed its final order in Division Bench, viz., 30th November, 1971.4. We are not fettered by this constraint in regard to the period since then. We must remember the general principle that the act of the Court should not injure any party. The length of the proceeding in this Court from 1971 to 1977 is the inevitable consequence of the back log in this Court and not blamable on either side. In such a situation we must so would the relied as not to prejudice either party bearing in mind the equities of the case. We think that it would be fair, having regard to overall circumstances of the case, that till the date of reinstatement, which we fix as December 1, 1971, the management will pay the employee 50% of the wages including the benefits that he may be eligible for had he continued in service from the date of High Courts judgment on 30th November, 1971 with interest at 7% per annum. Pursuant to the interim order of this Court certain sums have been paid by the appellant to the 2nd respondent and while computing the amount that is payable to the 2nd respondent credit shall be given for such payments. | 0[ds]The Courts below held, and quite rightly in our view, that since the employee was all along on leave granted by the employer no question of incapacity or being incapacitated from properly discharging his duties arose. It is obvious that when an employee is on leave he is not called upon to discharge any duties and, therefore, the question of the capacity to discharge duties does not fall for consideration. The clause relied upon comes into play only when an employee who has to discharge his duties fails to do so and the employer makes a judgment of the situation and comes to the conclusion that it is on account of an incapacity which will last longer than two months that the failure to discharge his duties has arisen. We are, therefore, satisfied that the clauses could not have been invoked and the termination of service, was bad inhave to be realistic in this jurisdiction although in industrial law when termination of service is found to be illegal, the ordinary rule is reinstatement. We direct reinstatement in affirmance of the order passed by the High Court and the Industrial Tribunal. But the High Court as well as the Industrial Tribunal have also awarded full wages and other benefits during the period the employees services had stood terminated. It is right for us to remember ....... and Shri Sen Gupta has reminded us of the proposition ..... that sitting in appeal under Art. 136 against an order of the High Court passed under Art. 226 we should not lightly interfere with the direction made in the judgment of the High Court unless there is some substantial error, manifest injustice or exceptional circumstance. None having been pointed out, we affirm the finding of the High Court regarding payment of back wages and other benefits up to the date the High Court passed its final order in Division Bench, viz., 30th November, 1971.4. We are not fettered by this constraint in regard to the period since then. We must remember the general principle that the act of the Court should not injure any party. The length of the proceeding in this Court from 1971 to 1977 is the inevitable consequence of the back log in this Court and not blamable on either side. In such a situation we must so would the relied as not to prejudice either party bearing in mind the equities of the case. We think that it would be fair, having regard to overall circumstances of the case, that till the date of reinstatement, which we fix as December 1, 1971, the management will pay the employee 50% of the wages including the benefits that he may be eligible for had he continued in service from the date of High Courts judgment on 30th November, 1971 with interest at 7% per annum. Pursuant to the interim order of this Court certain sums have been paid by the appellant to the 2nd respondent and while computing the amount that is payable to the 2nd respondent credit shall be given for such payments. | 0 | 851 | 553 | ### 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:
Krishna Iyer, J.1. This is an appeal, by special leave, from a judgment of the High Court in writ appeal by a Division Bench which confirmed the judgment of a learned single Judge of that Court who, in turn refused to interfere with the award of the Industrial Tribunal.2. The facts briefly are : that the 2nd respondent was an employee under the appellant for a long number of years. There was no blemish in his service, and Shri Sachin Choudhury for the appellant has very fairly stated that there was no complaint against the services of the 2nd respondent while he was employed by it. But the 2nd respondent fell ill and applied for leave. It so happened that his illness persisted for a long time and the management, quite, rightly, granted him leave from time to time. On 4th November, 1963 his leave expired and on 5th November, 1963 the management invoking a clause in the contract of employment, terminated his employment. It is that order of termination that was set aside by the Industrial Tribunal and affirmed from Court to Court up to now. The particular clause in the contract which was relied on by the management stated that :"It was open to the employer to determine the employment at any time without any notice or payment in lieu of notice in the event of ......You become from any cause incapacitated by a longer period than two calendar months from properly discharging your duties."The Courts below held, and quite rightly in our view, that since the employee was all along on leave granted by the employer no question of incapacity or being incapacitated from properly discharging his duties arose. It is obvious that when an employee is on leave he is not called upon to discharge any duties and, therefore, the question of the capacity to discharge duties does not fall for consideration. The clause relied upon comes into play only when an employee who has to discharge his duties fails to do so and the employer makes a judgment of the situation and comes to the conclusion that it is on account of an incapacity which will last longer than two months that the failure to discharge his duties has arisen. We are, therefore, satisfied that the clauses could not have been invoked and the termination of service, was bad in law.3. Even so, the further question arises as to whether the employee should be recompensated with full wages and other benefits until the date of reinstatement. We have to be realistic in this jurisdiction although in industrial law when termination of service is found to be illegal, the ordinary rule is reinstatement. We direct reinstatement in affirmance of the order passed by the High Court and the Industrial Tribunal. But the High Court as well as the Industrial Tribunal have also awarded full wages and other benefits during the period the employees services had stood terminated. It is right for us to remember ....... and Shri Sen Gupta has reminded us of the proposition ..... that sitting in appeal under Art. 136 against an order of the High Court passed under Art. 226 we should not lightly interfere with the direction made in the judgment of the High Court unless there is some substantial error, manifest injustice or exceptional circumstance. None having been pointed out, we affirm the finding of the High Court regarding payment of back wages and other benefits up to the date the High Court passed its final order in Division Bench, viz., 30th November, 1971.4. We are not fettered by this constraint in regard to the period since then. We must remember the general principle that the act of the Court should not injure any party. The length of the proceeding in this Court from 1971 to 1977 is the inevitable consequence of the back log in this Court and not blamable on either side. In such a situation we must so would the relied as not to prejudice either party bearing in mind the equities of the case. We think that it would be fair, having regard to overall circumstances of the case, that till the date of reinstatement, which we fix as December 1, 1971, the management will pay the employee 50% of the wages including the benefits that he may be eligible for had he continued in service from the date of High Courts judgment on 30th November, 1971 with interest at 7% per annum. Pursuant to the interim order of this Court certain sums have been paid by the appellant to the 2nd respondent and while computing the amount that is payable to the 2nd respondent credit shall be given for such payments.
### Response:
0
### Explanation:
The Courts below held, and quite rightly in our view, that since the employee was all along on leave granted by the employer no question of incapacity or being incapacitated from properly discharging his duties arose. It is obvious that when an employee is on leave he is not called upon to discharge any duties and, therefore, the question of the capacity to discharge duties does not fall for consideration. The clause relied upon comes into play only when an employee who has to discharge his duties fails to do so and the employer makes a judgment of the situation and comes to the conclusion that it is on account of an incapacity which will last longer than two months that the failure to discharge his duties has arisen. We are, therefore, satisfied that the clauses could not have been invoked and the termination of service, was bad inhave to be realistic in this jurisdiction although in industrial law when termination of service is found to be illegal, the ordinary rule is reinstatement. We direct reinstatement in affirmance of the order passed by the High Court and the Industrial Tribunal. But the High Court as well as the Industrial Tribunal have also awarded full wages and other benefits during the period the employees services had stood terminated. It is right for us to remember ....... and Shri Sen Gupta has reminded us of the proposition ..... that sitting in appeal under Art. 136 against an order of the High Court passed under Art. 226 we should not lightly interfere with the direction made in the judgment of the High Court unless there is some substantial error, manifest injustice or exceptional circumstance. None having been pointed out, we affirm the finding of the High Court regarding payment of back wages and other benefits up to the date the High Court passed its final order in Division Bench, viz., 30th November, 1971.4. We are not fettered by this constraint in regard to the period since then. We must remember the general principle that the act of the Court should not injure any party. The length of the proceeding in this Court from 1971 to 1977 is the inevitable consequence of the back log in this Court and not blamable on either side. In such a situation we must so would the relied as not to prejudice either party bearing in mind the equities of the case. We think that it would be fair, having regard to overall circumstances of the case, that till the date of reinstatement, which we fix as December 1, 1971, the management will pay the employee 50% of the wages including the benefits that he may be eligible for had he continued in service from the date of High Courts judgment on 30th November, 1971 with interest at 7% per annum. Pursuant to the interim order of this Court certain sums have been paid by the appellant to the 2nd respondent and while computing the amount that is payable to the 2nd respondent credit shall be given for such payments.
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M/s. Oriental Structural Engineers Pvt. Ltd Vs. State of Kerala | the Appellate Court and Arbitration Court was that the appellants, while bidding, had given up their claims for interest. In substance, the respondents assertion is that the Tribunal went beyond the contractual terms, and the said two fora sought to invoke the principle of law contained in the third sub-head of the patent illegality principle elaborated in the case of Associate Builders (supra). 14. The Appeal Court accepted reasoning of the Arbitration Court that the blank portion in the appendix to the bid would imply zero or nil. This reasoning, in our opinion, is flawed and such an interpretation of the agreement would actually be contrary to and beyond the terms of the contract. The Tribunal in this case had already come to a factual finding on appreciation of evidence that there was no such implication. Such an exercise on the part of the Arbitration Court and the Appellate Court would constitute rewriting the contract, which is impermissible. The Tribunal rejected the plea of waiver and we have reproduced its reasoning on that point. We cannot hold such reasoning to be perverse or improbable in the factual background of the present case. The Tribunal in this case could have had awarded interest as a compensatory or equitable measure, as there was no clause providing for exclusion or ouster of interest payment on delayed payment. The Tribunal determined the rate thereof in sub- paragraphs 1.6 to 1.8 of the award. This part of the award specifies:- 1.6 It is, therefore, held that the Claimants are entitled to interest on the amount as due under any IPCs issued by the Engineer or failing which, on the amounts as shown in the Claimants monthly statements submitted to the Engineer for certification and when were not paid or had been withheld by the Respondents and such interest shall be paid by the Respondents for the period as 42 days after the claimants respective monthly statements had been submitted to the Engineer for certification to the date of payment thereof in full. The arbitral tribunal further holds that on the unpaid sums and for the period of delay in the payment thereof as stated hereinabove, the Respondents shall pay to the claimants interest at the rate of 1% per month compounded monthly such rate being representative of the prevalent rate of access to money that the claimants were deprived of. 1.7 The Arbitral Tribunal therefore directs that the Respondents shall pay to the claimants interest on the unpaid sum of Rs. 2,15,72,150/- for the period of the due dates of payment till the actual dates of full payment of such amount at the rate stated in para 1.6 above in respect of IPCs No. 2 & IPC No. 4. 1.8 The Respondents shall further pay to the claimants such interest on the unpaid sums in respect of other IPCs No. 5 to 14 issued by the Engineer or the Claimants monthly statements submitted to the Engineer for certification for the period from the due dates of payment till the actual dates of full payment at the rate as stated in hereinabove. The respondents are also directed to pay further interest at the rate of 12% per annum on the interest amount determined pursuant to para 1.7 and 1.8 hereinabove from such dates of payment of the principal amount to the date of award. 15. The Appellate Courts rationale that such blank interest column might have had resulted in acceptance of the bid of the appellants as their bid could have been more competitive on the assumption that the other bidders might have had pressed for interest in that column is not acceptable to us. We do not find any material from which such a conclusion could be reached. No material has been shown to us from which it can be inferred that omission to fill in the blank space gave the appellants some kind of competitive edge in the bid process. We also do not know if other bidders had left the space blank or filled the same with specified rate. The Arbitration Courts view, sustained by the High Court is tainted with an element of speculation on this point. 16. We do not find any flaw in the reasoning of the Arbitral Tribunal that the contract did not prohibit the award of interest in respect of delayed payment in local currency component specified therein. This being the position, in our opinion, the contrary view expressed by the Arbitration Court in a proceeding under Section 34 of the Act, which view was upheld by the Appellate forum, breaches the permissible boundaries for encroaching upon an award as laid down in Saw Pipes case (supra). 17. In our opinion, the view taken by the Tribunal on consideration of the contract was both reasonable and possible view. We, however, are of the opinion that the rate at which interest has been directed to be paid as contained in paragraphs 1.6 and 1.8 of the award, which we have reproduced above, are rather excessive. As the agreement is silent on the point of rate of interest but provides for payment of interest on delayed payment, the Tribunals exercise of fixing the rate should have been on the basis of applying the principle laid down in paragraph 43.1. in the case of G.C. Roy (supra). The said principle is applicable in a proceeding under the 1996 Act as well. This principle has been broadly incorporated in Section 31(7) (a) of the 1996 Act. The only difference between the situation contemplated in the aforesaid provision and the facts of this case is that the agreement involved is not silent on interest entitlement of the appellants on delayed payment but the agreement contains provision for such payment. Only the rate at which interest would be payable remained unspecified. In our view, simple interest at the rate of 8% would be just and equitable on the sum left unpaid, calculated otherwise on the basis of sub-paragraphs 1.6. to 1.8 of the award. | 1[ds]8. The majority view of the Tribunal was that the contract itself provided for payment of interest with regard to local currency and foreign currency. The plea of the appellants has been that there was no waiver and in any event the communication of 14th July, 2004 followed by that of 3rd August, 2004 related to IPC-I only. This stand had been broadly accepted by the Tribunal. The Tribunal had also accepted the appellants/claimants stand that there was no waiver on claim of interest in respect of all sums due for which Interim Payment Certificates had been issued. The Tribunals finding on that aspect was buttressed by the fact that the appellants/claimants had continued to raise demand for interest subsequent to the issue of those two communications. These were essentially findings on facts.9. The Arbitration Court and the Appellate Court in sustaining the States application for setting aside the award were of the view that the contract could not be construed to contain provisions for interest on delay in payment with regard to the local currency component contained in the agreement, as the appellants did not fill up the blank space with the rate of interest. Opinion of the Appellate Bench was that in the event it was intention of the claimants to retain their entitlement to interest on delayed payment under that head, they ought to have had filled in the blank space in the appendix to bid. Another facet of the High Courts reasoning was that the respondents might have had been persuaded to accept the appellants bid on the basis that the appellants would claim no interest on delayed payment in such situation, as this factor could have made their bid more competitive.10. This appeal, in substance, is an extension of a proceeding under Section 34 of the 1996 Act. To go into the question of legality of the decisions made by the two judicial fora, we need to test first if the grounds of challenge to the award met the test laid down by this Court in the case of Oil Natural Gas Corporation Ltd. vs. Saw Pipes Ltd. [(2003) 5 SCC 705] . Contention of the respondents has been that the Arbitral Tribunals order stood vitiated under the patent illegality principle spelt out in that judgment. This principle came under the broad heading of Public Policy test, applying which an arbitral award could be set aside. What would constitute patent illegality has been elaborated by this Court in a later judgment, Associate Builders vs. Delhi Development Authority [(2015) 3 SCC 49] . An award would be invalidated, as per this authority, if the same was in contravention of substantive law of the country or contravention of the Arbitration Act itself. In paragraph 42.3 of the Report (in the case of Associate Builders), it has been held:-42.3 (c) Equally, the third subhead of patent illegality is really a contravention of Section 28(3) of the Arbitration Act, which reads as under:28. Rules applicable to substance of dispute.-(1)-(2)* * *(3) In all cases, the Arbitral Tribunal shall decide in accordance with the terms of the contract and shall take into account the usages of the trade applicable to the transaction.This last contravention must be understood with a caveat. An Arbitral Tribunal must decide in accordance with the terms of the contract, but if an arbitrator construes a term of the contract in a reasonable manner, it will not mean that the award can be set aside on this ground. Construction of the terms of a contract is primarily for an arbitrator to decide unless the arbitrator construes the contract in such a way that it could be said to be something that no fair-minded or reasonable person could do.11. The High Court in the appeal concurred with the Arbitration Court and concluded that omission to include the rate of interest in the bid document, the appendix to bid to be specific, had resulted in creation of contractual term that there would not be any claim for interest on delayed payment (as per Clause 60.8) so far as payment in local currency component contained in the agreement is concerned. In our opinion, however, the interference with the award by the Arbitration Court on this ground was unwarranted. The underlying reasoning of the Appellate Court and earlier, the Arbitration Court on this point is that the Tribunal went beyond the contractual term in awarding interest. The case of G.C. Roy (supra) and a later decision of this Court, Reliance Cellulose Products Ltd. vs. ONGC Ltd. [(2018) 9 SCC 266] , were relied upon before us by the appellants to sustain the Tribunals findings. These decisions are sought to be distinguished on behalf of the respondents on the ground that the former decision related to interest pendente lite and both these cases were under the Arbitration Act, 1940. Under the said statute, an arbitrator had power or jurisdiction to grant pre- reference interest under the Interest Act, 1978 as also pendente lite and future interest. Such jurisdiction stood curbed only if express terms of the contract precluded payment of interest. Referring to another authority, the Union of India vs. Bright Power Projects (India) (P) Ltd. [(2015) 9 SCC 695] , this Court highlighted the position of law on grant of interest under Section 31(7) of the 1996 Act. In the case of Bright Power Projects (supra), it has been opined by this Court that unless otherwise agreed by the parties, the Arbitral Tribunal can award interest at reasonable rate for a period commencing from that date when the cause of action arises till the date of the award. In the dispute which forms the subject-matter of this appeal, being the agreement, there was no specific exclusion of payment of interest on delayed payment in relation to the local currency component.12. On the other hand, the specific term of the agreement entered into by and between the parties provided for payment of interest on delayed payment as terms of the contract. What was not specifically agreed upon was the rate at which such interest would be paid. The blank space in the appendix to the bid, in our opinion, cannot be construed as cancellation of the clause providing for payment of interest of delayed release of funds. We do not think the Appellate Court or the Arbitration Court was right in adopting the approach that by not specifying the blank space provided for filling in the interest rate. We are of the view that to come to such an inference, active exclusion of payment of interest under that head was necessary to have been incorporated in the agreement. Though the case of G.C. Roy (supra) was delivered in a dispute to which the 1940 Act was applicable, the Constitution Bench of this Court has laid down certain general proposition or principle on the aspect of grant of interest. This general proposition was referred to by the Tribunal. It has been held in paragraph 43.1 of the Report (in the case of G.C. Roy):-43. The question still remains whether arbitrator has the power to award interest pendent lite, and if so on what principle. We must reiterate that we are dealing with the situation where the agreement does not provide for grant of such interest nor does it prohibit such grant. In other words, we are dealing with a case where the agreement is silent as to award of interest. On a conspectus of aforementioned decisions, the following principles emerge:(i) A person deprived of the use of money to which he is legitimately entitled has a right to be compensated for the deprivation, call it by any name. It may be called interest, compensation or damages. This basic consideration is as valid for the period the dispute is pending before the arbitrator as it is for the period prior to the arbitrator entering upon the reference. This is the principle of Section 34, Civil Procedure Code and there is no reason or principle to hold otherwise in the case of arbitrator.....13. The underlying principle guiding award of interest is that interest payment is essentially compensatory in nature. But as we have already observed, in the case before us, interest on delayed payment formed part of the contract itself. The agreement did not contain any express exclusion clause on payment of interest on delayed payment whether on component of payment in foreign currency or local currency. We accept the reasoning of the Tribunal on the basis of which it rejected the respondents plea of waiver. This was a finding of fact on appreciation of materials placed before the Tribunal. One of the reasons behind the decisions of the Appellate Court and Arbitration Court was that the appellants, while bidding, had given up their claims for interest. In substance, the respondents assertion is that the Tribunal went beyond the contractual terms, and the said two fora sought to invoke the principle of law contained in the third sub-head of the patent illegality principle elaborated in the case of Associate Builders (supra).14. The Appeal Court accepted reasoning of the Arbitration Court that the blank portion in the appendix to the bid would imply zero or nil. This reasoning, in our opinion, is flawed and such an interpretation of the agreement would actually be contrary to and beyond the terms of the contract. The Tribunal in this case had already come to a factual finding on appreciation of evidence that there was no such implication. Such an exercise on the part of the Arbitration Court and the Appellate Court would constitute rewriting the contract, which is impermissible. The Tribunal rejected the plea of waiver and we have reproduced its reasoning on that point. We cannot hold such reasoning to be perverse or improbable in the factual background of the present case. The Tribunal in this case could have had awarded interest as a compensatory or equitable measure, as there was no clause providing for exclusion or ouster of interest payment on delayed payment. The Tribunal determined the rate thereof in sub- paragraphs 1.6 to 1.8 of the award. This part of the award specifies:-1.6 It is, therefore, held that the Claimants are entitled to interest on the amount as due under any IPCs issued by the Engineer or failing which, on the amounts as shown in the Claimants monthly statements submitted to the Engineer for certification and when were not paid or had been withheld by the Respondents and such interest shall be paid by the Respondents for the period as 42 days after the claimants respective monthly statements had been submitted to the Engineer for certification to the date of payment thereof in full. The arbitral tribunal further holds that on the unpaid sums and for the period of delay in the payment thereof as stated hereinabove, the Respondents shall pay to the claimants interest at the rate of 1% per month compounded monthly such rate being representative of the prevalent rate of access to money that the claimants were deprived of.1.7 The Arbitral Tribunal therefore directs that the Respondents shall pay to the claimants interest on the unpaid sum of Rs. 2,15,72,150/- for the period of the due dates of payment till the actual dates of full payment of such amount at the rate stated in para 1.6 above in respect of IPCs No. 2 & IPC No. 4.1.8 The Respondents shall further pay to the claimants such interest on the unpaid sums in respect of other IPCs No. 5 to 14 issued by the Engineer or the Claimants monthly statements submitted to the Engineer for certification for the period from the due dates of payment till the actual dates of full payment at the rate as stated in hereinabove.The respondents are also directed to pay further interest at the rate of 12% per annum on the interest amount determined pursuant to para 1.7 and 1.8 hereinabove from such dates of payment of the principal amount to the date of award.15. The Appellate Courts rationale that such blank interest column might have had resulted in acceptance of the bid of the appellants as their bid could have been more competitive on the assumption that the other bidders might have had pressed for interest in that column is not acceptable to us. We do not find any material from which such a conclusion could be reached. No material has been shown to us from which it can be inferred that omission to fill in the blank space gave the appellants some kind of competitive edge in the bid process. We also do not know if other bidders had left the space blank or filled the same with specified rate. The Arbitration Courts view, sustained by the High Court is tainted with an element of speculation on this point.16. We do not find any flaw in the reasoning of the Arbitral Tribunal that the contract did not prohibit the award of interest in respect of delayed payment in local currency component specified therein. This being the position, in our opinion, the contrary view expressed by the Arbitration Court in a proceeding under Section 34 of the Act, which view was upheld by the Appellate forum, breaches the permissible boundaries for encroaching upon an award as laid down in Saw Pipes case (supra).17. In our opinion, the view taken by the Tribunal on consideration of the contract was both reasonable and possible view. We, however, are of the opinion that the rate at which interest has been directed to be paid as contained in paragraphs 1.6 and 1.8 of the award, which we have reproduced above, are rather excessive. As the agreement is silent on the point of rate of interest but provides for payment of interest on delayed payment, the Tribunals exercise of fixing the rate should have been on the basis of applying the principle laid down in paragraph 43.1. in the case of G.C. Roy (supra). The said principle is applicable in a proceeding under the 1996 Act as well. This principle has been broadly incorporated in Section 31(7) (a) of the 1996 Act. The only difference between the situation contemplated in the aforesaid provision and the facts of this case is that the agreement involved is not silent on interest entitlement of the appellants on delayed payment but the agreement contains provision for such payment. Only the rate at which interest would be payable remained unspecified. In our view, simple interest at the rate of 8% would be just and equitable on the sum left unpaid, calculated otherwise on the basis of sub-paragraphs 1.6. to 1.8 of the award. | 1 | 4,645 | 2,675 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
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the Appellate Court and Arbitration Court was that the appellants, while bidding, had given up their claims for interest. In substance, the respondents assertion is that the Tribunal went beyond the contractual terms, and the said two fora sought to invoke the principle of law contained in the third sub-head of the patent illegality principle elaborated in the case of Associate Builders (supra). 14. The Appeal Court accepted reasoning of the Arbitration Court that the blank portion in the appendix to the bid would imply zero or nil. This reasoning, in our opinion, is flawed and such an interpretation of the agreement would actually be contrary to and beyond the terms of the contract. The Tribunal in this case had already come to a factual finding on appreciation of evidence that there was no such implication. Such an exercise on the part of the Arbitration Court and the Appellate Court would constitute rewriting the contract, which is impermissible. The Tribunal rejected the plea of waiver and we have reproduced its reasoning on that point. We cannot hold such reasoning to be perverse or improbable in the factual background of the present case. The Tribunal in this case could have had awarded interest as a compensatory or equitable measure, as there was no clause providing for exclusion or ouster of interest payment on delayed payment. The Tribunal determined the rate thereof in sub- paragraphs 1.6 to 1.8 of the award. This part of the award specifies:- 1.6 It is, therefore, held that the Claimants are entitled to interest on the amount as due under any IPCs issued by the Engineer or failing which, on the amounts as shown in the Claimants monthly statements submitted to the Engineer for certification and when were not paid or had been withheld by the Respondents and such interest shall be paid by the Respondents for the period as 42 days after the claimants respective monthly statements had been submitted to the Engineer for certification to the date of payment thereof in full. The arbitral tribunal further holds that on the unpaid sums and for the period of delay in the payment thereof as stated hereinabove, the Respondents shall pay to the claimants interest at the rate of 1% per month compounded monthly such rate being representative of the prevalent rate of access to money that the claimants were deprived of. 1.7 The Arbitral Tribunal therefore directs that the Respondents shall pay to the claimants interest on the unpaid sum of Rs. 2,15,72,150/- for the period of the due dates of payment till the actual dates of full payment of such amount at the rate stated in para 1.6 above in respect of IPCs No. 2 & IPC No. 4. 1.8 The Respondents shall further pay to the claimants such interest on the unpaid sums in respect of other IPCs No. 5 to 14 issued by the Engineer or the Claimants monthly statements submitted to the Engineer for certification for the period from the due dates of payment till the actual dates of full payment at the rate as stated in hereinabove. The respondents are also directed to pay further interest at the rate of 12% per annum on the interest amount determined pursuant to para 1.7 and 1.8 hereinabove from such dates of payment of the principal amount to the date of award. 15. The Appellate Courts rationale that such blank interest column might have had resulted in acceptance of the bid of the appellants as their bid could have been more competitive on the assumption that the other bidders might have had pressed for interest in that column is not acceptable to us. We do not find any material from which such a conclusion could be reached. No material has been shown to us from which it can be inferred that omission to fill in the blank space gave the appellants some kind of competitive edge in the bid process. We also do not know if other bidders had left the space blank or filled the same with specified rate. The Arbitration Courts view, sustained by the High Court is tainted with an element of speculation on this point. 16. We do not find any flaw in the reasoning of the Arbitral Tribunal that the contract did not prohibit the award of interest in respect of delayed payment in local currency component specified therein. This being the position, in our opinion, the contrary view expressed by the Arbitration Court in a proceeding under Section 34 of the Act, which view was upheld by the Appellate forum, breaches the permissible boundaries for encroaching upon an award as laid down in Saw Pipes case (supra). 17. In our opinion, the view taken by the Tribunal on consideration of the contract was both reasonable and possible view. We, however, are of the opinion that the rate at which interest has been directed to be paid as contained in paragraphs 1.6 and 1.8 of the award, which we have reproduced above, are rather excessive. As the agreement is silent on the point of rate of interest but provides for payment of interest on delayed payment, the Tribunals exercise of fixing the rate should have been on the basis of applying the principle laid down in paragraph 43.1. in the case of G.C. Roy (supra). The said principle is applicable in a proceeding under the 1996 Act as well. This principle has been broadly incorporated in Section 31(7) (a) of the 1996 Act. The only difference between the situation contemplated in the aforesaid provision and the facts of this case is that the agreement involved is not silent on interest entitlement of the appellants on delayed payment but the agreement contains provision for such payment. Only the rate at which interest would be payable remained unspecified. In our view, simple interest at the rate of 8% would be just and equitable on the sum left unpaid, calculated otherwise on the basis of sub-paragraphs 1.6. to 1.8 of the award.
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One of the reasons behind the decisions of the Appellate Court and Arbitration Court was that the appellants, while bidding, had given up their claims for interest. In substance, the respondents assertion is that the Tribunal went beyond the contractual terms, and the said two fora sought to invoke the principle of law contained in the third sub-head of the patent illegality principle elaborated in the case of Associate Builders (supra).14. The Appeal Court accepted reasoning of the Arbitration Court that the blank portion in the appendix to the bid would imply zero or nil. This reasoning, in our opinion, is flawed and such an interpretation of the agreement would actually be contrary to and beyond the terms of the contract. The Tribunal in this case had already come to a factual finding on appreciation of evidence that there was no such implication. Such an exercise on the part of the Arbitration Court and the Appellate Court would constitute rewriting the contract, which is impermissible. The Tribunal rejected the plea of waiver and we have reproduced its reasoning on that point. We cannot hold such reasoning to be perverse or improbable in the factual background of the present case. The Tribunal in this case could have had awarded interest as a compensatory or equitable measure, as there was no clause providing for exclusion or ouster of interest payment on delayed payment. The Tribunal determined the rate thereof in sub- paragraphs 1.6 to 1.8 of the award. This part of the award specifies:-1.6 It is, therefore, held that the Claimants are entitled to interest on the amount as due under any IPCs issued by the Engineer or failing which, on the amounts as shown in the Claimants monthly statements submitted to the Engineer for certification and when were not paid or had been withheld by the Respondents and such interest shall be paid by the Respondents for the period as 42 days after the claimants respective monthly statements had been submitted to the Engineer for certification to the date of payment thereof in full. The arbitral tribunal further holds that on the unpaid sums and for the period of delay in the payment thereof as stated hereinabove, the Respondents shall pay to the claimants interest at the rate of 1% per month compounded monthly such rate being representative of the prevalent rate of access to money that the claimants were deprived of.1.7 The Arbitral Tribunal therefore directs that the Respondents shall pay to the claimants interest on the unpaid sum of Rs. 2,15,72,150/- for the period of the due dates of payment till the actual dates of full payment of such amount at the rate stated in para 1.6 above in respect of IPCs No. 2 & IPC No. 4.1.8 The Respondents shall further pay to the claimants such interest on the unpaid sums in respect of other IPCs No. 5 to 14 issued by the Engineer or the Claimants monthly statements submitted to the Engineer for certification for the period from the due dates of payment till the actual dates of full payment at the rate as stated in hereinabove.The respondents are also directed to pay further interest at the rate of 12% per annum on the interest amount determined pursuant to para 1.7 and 1.8 hereinabove from such dates of payment of the principal amount to the date of award.15. The Appellate Courts rationale that such blank interest column might have had resulted in acceptance of the bid of the appellants as their bid could have been more competitive on the assumption that the other bidders might have had pressed for interest in that column is not acceptable to us. We do not find any material from which such a conclusion could be reached. No material has been shown to us from which it can be inferred that omission to fill in the blank space gave the appellants some kind of competitive edge in the bid process. We also do not know if other bidders had left the space blank or filled the same with specified rate. The Arbitration Courts view, sustained by the High Court is tainted with an element of speculation on this point.16. We do not find any flaw in the reasoning of the Arbitral Tribunal that the contract did not prohibit the award of interest in respect of delayed payment in local currency component specified therein. This being the position, in our opinion, the contrary view expressed by the Arbitration Court in a proceeding under Section 34 of the Act, which view was upheld by the Appellate forum, breaches the permissible boundaries for encroaching upon an award as laid down in Saw Pipes case (supra).17. In our opinion, the view taken by the Tribunal on consideration of the contract was both reasonable and possible view. We, however, are of the opinion that the rate at which interest has been directed to be paid as contained in paragraphs 1.6 and 1.8 of the award, which we have reproduced above, are rather excessive. As the agreement is silent on the point of rate of interest but provides for payment of interest on delayed payment, the Tribunals exercise of fixing the rate should have been on the basis of applying the principle laid down in paragraph 43.1. in the case of G.C. Roy (supra). The said principle is applicable in a proceeding under the 1996 Act as well. This principle has been broadly incorporated in Section 31(7) (a) of the 1996 Act. The only difference between the situation contemplated in the aforesaid provision and the facts of this case is that the agreement involved is not silent on interest entitlement of the appellants on delayed payment but the agreement contains provision for such payment. Only the rate at which interest would be payable remained unspecified. In our view, simple interest at the rate of 8% would be just and equitable on the sum left unpaid, calculated otherwise on the basis of sub-paragraphs 1.6. to 1.8 of the award.
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Hukamchand Vs. Bansilal & Ors | confirm the sale.8. It is on these principles that we have to decide whether the trial court was correct. We have already indicated that the sale was held on April 7, 1958, and in the normal course it would have been confirmed after 30 days unless an application under R. 89, R. 90 or Rule 91 of Order XXI was made. Besides this case is, as we have already assumed, analogous to the case of a final mortgage decree. The judgment-debtor mortgagor had the right to deposit the amount at any time before confirmation of sale within 30 days after the sale or even more than 30 days after the sale under Order XXXIV, Rule 5 (1) so long as the sale was not confirmed. If the amount had been deposited before the confirmation of sale, the judgment-debtors had the right to ask for an order in terms of Order XXXIV, Rule 5 (1) in their favour. In this case an application under O.XXI R. 90 had been made and therefore the sale could not be confirmed immediately after 30 days which would be the normal course; the confirmation had to await the disposal of the application under Order XXI, Rule 90. That application was disposed of on October 7, 1958 and was dismissed. It is obvious from the order sheet of October 7, 1938 that an oral compromise was arrived at between the parties in court on that day. By that compromise time was granted to the respondents to deposit the entire amount due to the decree-holder and the auction-purchaser by November 21, 1958. Obviously, the basis of the compromise was that the respondents withdrew their application under O. XXI, Rule 90 while the decree-holder society and the auction-purchaser appellant agreed that time might be given to deposit the amount upto November 21, 1958.If this agreement had not been arrived at and if the application under Order XXI, Rule 90 had been dismissed (for example, on merits) on October 7, 1958, the court was bound under O. XXI, Rule 92 (1) to confirm the sale at once. But because of the compromise between the parties by which the respondents were given time upto November 21, 1958 the court rightly postponed the question of confirmation of sale till that date by consent of parties. But the fact remains that the application under Order XXI, Rule 90 had been dismissed on October 7, 1958 and thereafter, the court was bound to confirm the sale but for the compromise between the parties giving time upto November 21, 1958.9. Now let us see what happened about November 21, 1958. On November 20, 1958, an application was made by the respondents praying that they might be given one day more as November 21, 1958 was holiday. No order was passed on that date, but it is remarkable that no money was deposited on November 20, 1958. When the matter came up before the court on November 22, 1958 no money was deposited even on that day. Now under Order XXXIV, Rule 5 it was open to the respondents to deposit the entire amount on November 22, 1958 before the sale was confirmed, but no such deposit was made on November 22, 1958. On the other hand, counsel for the respondents prayed to the executing court for extension of time by 14 days. The executing court refused that holding that time upto November 21, 1958 had been granted by consent and it was no longer open to it to extend that time. The executing court has not referred to Order XXI, Rule 92 in its order, but it is obvious that the executing court held that it could not grant time in the absence of an agreement between the parties, because Order XXI, Rule 92 required that as the application under Order XXI, R. 90 had been dismissed the sale must be confirmed.We are of the view that in the circumstances it was not open to the executing court to extend time without consent of parties, for time between October 7, 1958 to November 21, 1958 was granted by consent of parties. Section 148 of the Code of Civil Procedure would not apply in these circumstances, and the executing court was right in holding that it could not extend time. Thereafter it rightly confirmed the sale as required under Order XXI, Rule 92 there being no question of the application of Order XXXIV, Rule 5 for the money had not been deposited on November 22, 1958 before the order of confirmation was passed. In this view of the matter, we are of opinion that the order of the executing court refusing grant of time and confirming the sale was correct.10. It is however urged that it does not appear that the time was granted on October 7, 1958 by consent of parties because the respondents had only asked for one months time and the court gave time for about six weeks. It appears however that the grant of time on October 7, 1958 was as a result of an oral compromise between the parties. This is quite clear from the fact that the application under Order XXI, Rule 90 was withdrawn on the basis that time would be granted. The fact that time was actually granted for six weeks does not mean that that was done without the consent of the parties. It seems to us that the whole thing took place in the presence of the court and the order granting time upto November 21, 1958 must in the circumstances be read as a consent order. It is borne out by the fact that on November 22, 1958 the same presiding judge of the executing court said that time had been granted with the consent of the parties by way of compromise. We cannot therefore accept the contention that time was not granted by consent of parties and therefore the court had power under Section 148 to extend time which had already been granted. | 1[ds]If that view is correct, there would be no difficulty in holding in view of Order XXI, Rule 92 that the order confirming sale was proper. We shall proceed on the assumption that Order XXXIV, Rule 5 applies in the present case and that the order of the Registrar which was under execution was a final decree in a mortgage suit. Order XXXIV Rule 5 (1) gives an opportunity to the judgment-debtor in a mortgage decree for sale to deposit the amount due under the mortgage decree at any time before the confirmation of sale made in pursuance of the final decree and if such a deposit is made the court executing the decree has to accept the payment and make an order in favour of the judgment-debtor in terms of Order XXXIV, Rule 5 (1). Though Order XXXIV, Rule 5 (1) recognises the right of the judgment-debtor to pay the decretal amount in an execution relating to a mortgage decree for sale at any time before the confirmation of sale at any time before the confirmation of sale, that the said rule gives power to the court to extend time for payment on an application made by the judgment-debtor. There is no provision in Order XXXIV, R. 5 (1) like that contained in Order XXXIV, R. 4 (2) to extend time for payment after the final decree is passed in a mortgage suit. As we read O. XXXIV, R. 5 it only permits the judgment-debtor to deposit the amount due under the decree and such other amount as may be due in consequence of a sale having taken place, provided the deposit is made before the confirmation of sale. But there is no power in Order XXXIV, Rule 5 (1) to grant extension of time and postpone confirmation of sale therefor. The observation of the District Judge that the court has always the power to postpone passing orders confirming sale of immovable property is in our view incorrect, in the face of the provisions contained in Order XXI, Rule 92 (1). That provision makes it absolutely clear that if no application is made under Rule 89, Rule 90 or Rule 91 or where such application is made and disallowed, the court has to make an order confirming the sale and thereupon the sale becomes absolute. It is not open to the court to go on fixing date after date and postponing confirmation of sale merely to accommodate judgment-debtor. If that were so, the court may go on postponing confirmation of sale for years in order to accommodate a judgment-debtor. What Order XXI, Rule 92 contemplates it that where conditions thereunder are satisfied an order for confirmation must follow. Further we have already indicated that Order XXXIV, Rule 5 does not give any power to court to grant time to deposit the money after the final decree has been passed. All that it permits is that a judgment-debtor can deposit the amount even after the final decree is passed at any time before the confirmation of sale and if he does so, an order in terms of Order XXXIV, Rule 5 (1) in his favour has to be passed. With respect we cannot understand what the Letters Patent Bench meant by saying, that before a mortgagor could be prevented from making payment and redeeming the property his rights must have come to an end and that they could not come to an end unless his title to the property had been lost by confirmation of sale. It is true that so long as his right to redeem subsists the mortgagor may redeem the property. It is this principle which is recognised in O. XXXIV, Rule 5 which provides that the mortgagor judgment-debtor can deposit the amount due even after the final decree has been passed but this deposit must be made at any time before confirmation of sale.It may be noted that there is no power under Order XXXIV, Rule 5 to extend time and all that it does is to permit the mortgagor judgment-debtor to deposit the amount before confirmation of sale. It does not give any right to the mortgagor judgment-debtor to ask for postponement of confirmation of sale in order to enable him to deposit the amount. We have to interpret Order XXXIV, Rule 5 and Order XXI, Rule 92 harmoniously and on a harmonious interpretation of the two provisions it is clear that though the mortgagor has the right to deposit the amount due at any time before confirmation of sale, there is no question of his being granted time under Order XXXIV, Rule 5 and if the provisions of Order XXI, Rule 92 (1) apply the sale must be confirmed unless before the confirmation the mortgagor judgment-debtor has deposited the amount as permitted by Order XXXIV, RuleWe have already indicated that the sale was held on April 7, 1958, and in the normal course it would have been confirmed after 30 days unless an application under R. 89, R. 90 or Rule 91 of Order XXI was made. Besides this case is, as we have already assumed, analogous to the case of a final mortgage decree. The judgment-debtor mortgagor had the right to deposit the amount at any time before confirmation of sale within 30 days after the sale or even more than 30 days after the sale under Order XXXIV, Rule 5 (1) so long as the sale was not confirmed. If the amount had been deposited before the confirmation of sale, the judgment-debtors had the right to ask for an order in terms of Order XXXIV, Rule 5 (1) in their favour. In this case an application under O.XXI R. 90 had been made and therefore the sale could not be confirmed immediately after 30 days which would be the normal course; the confirmation had to await the disposal of the application under Order XXI, Rule 90. That application was disposed of on October 7, 1958 and was dismissed. It is obvious from the order sheet of October 7, 1938 that an oral compromise was arrived at between the parties in court on that day. By that compromise time was granted to the respondents to deposit the entire amount due to the decree-holder and the auction-purchaser by November 21, 1958. Obviously, the basis of the compromise was that the respondents withdrew their application under O. XXI, Rule 90 while the decree-holder society and the auction-purchaser appellant agreed that time might be given to deposit the amount upto November 21, 1958.If this agreement had not been arrived at and if the application under Order XXI, Rule 90 had been dismissed (for example, on merits) on October 7, 1958, the court was bound under O. XXI, Rule 92 (1) to confirm the sale at once. But because of the compromise between the parties by which the respondents were given time upto November 21, 1958 the court rightly postponed the question of confirmation of sale till that date by consent of parties. But the fact remains that the application under Order XXI, Rule 90 had been dismissed on October 7, 1958 and thereafter, the court was bound to confirm the sale but for the compromise between the parties giving time upto November 21,are of the view that in the circumstances it was not open to the executing court to extend time without consent of parties, for time between October 7, 1958 to November 21, 1958 was granted by consent of parties. Section 148 of theCode of Civil Procedure would not apply in these circumstances, and the executing court was right in holding that it could not extend time. Thereafter it rightly confirmed the sale as required under Order XXI, Rule 92 there being no question of the application of Order XXXIV, Rule 5 for the money had not been deposited on November 22, 1958 before the order of confirmation was passed. In this view of the matter, we are of opinion that the order of the executing court refusing grant of time and confirming the sale wasappears however that the grant of time on October 7, 1958 was as a result of an oral compromise between the parties. This is quite clear from the fact that the application under Order XXI, Rule 90 was withdrawn on the basis that time would be granted. The fact that time was actually granted for six weeks does not mean that that was done without the consent of the parties. It seems to us that the whole thing took place in the presence of the court and the order granting time upto November 21, 1958 must in the circumstances be read as a consent order. It is borne out by the fact that on November 22, 1958 the same presiding judge of the executing court said that time had been granted with the consent of the parties by way of compromise. We cannot therefore accept the contention that time was not granted by consent of parties and therefore the court had power under Section 148 to extend time which had already been granted. | 1 | 3,546 | 1,650 | ### Instruction:
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confirm the sale.8. It is on these principles that we have to decide whether the trial court was correct. We have already indicated that the sale was held on April 7, 1958, and in the normal course it would have been confirmed after 30 days unless an application under R. 89, R. 90 or Rule 91 of Order XXI was made. Besides this case is, as we have already assumed, analogous to the case of a final mortgage decree. The judgment-debtor mortgagor had the right to deposit the amount at any time before confirmation of sale within 30 days after the sale or even more than 30 days after the sale under Order XXXIV, Rule 5 (1) so long as the sale was not confirmed. If the amount had been deposited before the confirmation of sale, the judgment-debtors had the right to ask for an order in terms of Order XXXIV, Rule 5 (1) in their favour. In this case an application under O.XXI R. 90 had been made and therefore the sale could not be confirmed immediately after 30 days which would be the normal course; the confirmation had to await the disposal of the application under Order XXI, Rule 90. That application was disposed of on October 7, 1958 and was dismissed. It is obvious from the order sheet of October 7, 1938 that an oral compromise was arrived at between the parties in court on that day. By that compromise time was granted to the respondents to deposit the entire amount due to the decree-holder and the auction-purchaser by November 21, 1958. Obviously, the basis of the compromise was that the respondents withdrew their application under O. XXI, Rule 90 while the decree-holder society and the auction-purchaser appellant agreed that time might be given to deposit the amount upto November 21, 1958.If this agreement had not been arrived at and if the application under Order XXI, Rule 90 had been dismissed (for example, on merits) on October 7, 1958, the court was bound under O. XXI, Rule 92 (1) to confirm the sale at once. But because of the compromise between the parties by which the respondents were given time upto November 21, 1958 the court rightly postponed the question of confirmation of sale till that date by consent of parties. But the fact remains that the application under Order XXI, Rule 90 had been dismissed on October 7, 1958 and thereafter, the court was bound to confirm the sale but for the compromise between the parties giving time upto November 21, 1958.9. Now let us see what happened about November 21, 1958. On November 20, 1958, an application was made by the respondents praying that they might be given one day more as November 21, 1958 was holiday. No order was passed on that date, but it is remarkable that no money was deposited on November 20, 1958. When the matter came up before the court on November 22, 1958 no money was deposited even on that day. Now under Order XXXIV, Rule 5 it was open to the respondents to deposit the entire amount on November 22, 1958 before the sale was confirmed, but no such deposit was made on November 22, 1958. On the other hand, counsel for the respondents prayed to the executing court for extension of time by 14 days. The executing court refused that holding that time upto November 21, 1958 had been granted by consent and it was no longer open to it to extend that time. The executing court has not referred to Order XXI, Rule 92 in its order, but it is obvious that the executing court held that it could not grant time in the absence of an agreement between the parties, because Order XXI, Rule 92 required that as the application under Order XXI, R. 90 had been dismissed the sale must be confirmed.We are of the view that in the circumstances it was not open to the executing court to extend time without consent of parties, for time between October 7, 1958 to November 21, 1958 was granted by consent of parties. Section 148 of the Code of Civil Procedure would not apply in these circumstances, and the executing court was right in holding that it could not extend time. Thereafter it rightly confirmed the sale as required under Order XXI, Rule 92 there being no question of the application of Order XXXIV, Rule 5 for the money had not been deposited on November 22, 1958 before the order of confirmation was passed. In this view of the matter, we are of opinion that the order of the executing court refusing grant of time and confirming the sale was correct.10. It is however urged that it does not appear that the time was granted on October 7, 1958 by consent of parties because the respondents had only asked for one months time and the court gave time for about six weeks. It appears however that the grant of time on October 7, 1958 was as a result of an oral compromise between the parties. This is quite clear from the fact that the application under Order XXI, Rule 90 was withdrawn on the basis that time would be granted. The fact that time was actually granted for six weeks does not mean that that was done without the consent of the parties. It seems to us that the whole thing took place in the presence of the court and the order granting time upto November 21, 1958 must in the circumstances be read as a consent order. It is borne out by the fact that on November 22, 1958 the same presiding judge of the executing court said that time had been granted with the consent of the parties by way of compromise. We cannot therefore accept the contention that time was not granted by consent of parties and therefore the court had power under Section 148 to extend time which had already been granted.
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order in terms of Order XXXIV, Rule 5 (1) in his favour has to be passed. With respect we cannot understand what the Letters Patent Bench meant by saying, that before a mortgagor could be prevented from making payment and redeeming the property his rights must have come to an end and that they could not come to an end unless his title to the property had been lost by confirmation of sale. It is true that so long as his right to redeem subsists the mortgagor may redeem the property. It is this principle which is recognised in O. XXXIV, Rule 5 which provides that the mortgagor judgment-debtor can deposit the amount due even after the final decree has been passed but this deposit must be made at any time before confirmation of sale.It may be noted that there is no power under Order XXXIV, Rule 5 to extend time and all that it does is to permit the mortgagor judgment-debtor to deposit the amount before confirmation of sale. It does not give any right to the mortgagor judgment-debtor to ask for postponement of confirmation of sale in order to enable him to deposit the amount. We have to interpret Order XXXIV, Rule 5 and Order XXI, Rule 92 harmoniously and on a harmonious interpretation of the two provisions it is clear that though the mortgagor has the right to deposit the amount due at any time before confirmation of sale, there is no question of his being granted time under Order XXXIV, Rule 5 and if the provisions of Order XXI, Rule 92 (1) apply the sale must be confirmed unless before the confirmation the mortgagor judgment-debtor has deposited the amount as permitted by Order XXXIV, RuleWe have already indicated that the sale was held on April 7, 1958, and in the normal course it would have been confirmed after 30 days unless an application under R. 89, R. 90 or Rule 91 of Order XXI was made. Besides this case is, as we have already assumed, analogous to the case of a final mortgage decree. The judgment-debtor mortgagor had the right to deposit the amount at any time before confirmation of sale within 30 days after the sale or even more than 30 days after the sale under Order XXXIV, Rule 5 (1) so long as the sale was not confirmed. If the amount had been deposited before the confirmation of sale, the judgment-debtors had the right to ask for an order in terms of Order XXXIV, Rule 5 (1) in their favour. In this case an application under O.XXI R. 90 had been made and therefore the sale could not be confirmed immediately after 30 days which would be the normal course; the confirmation had to await the disposal of the application under Order XXI, Rule 90. That application was disposed of on October 7, 1958 and was dismissed. It is obvious from the order sheet of October 7, 1938 that an oral compromise was arrived at between the parties in court on that day. By that compromise time was granted to the respondents to deposit the entire amount due to the decree-holder and the auction-purchaser by November 21, 1958. Obviously, the basis of the compromise was that the respondents withdrew their application under O. XXI, Rule 90 while the decree-holder society and the auction-purchaser appellant agreed that time might be given to deposit the amount upto November 21, 1958.If this agreement had not been arrived at and if the application under Order XXI, Rule 90 had been dismissed (for example, on merits) on October 7, 1958, the court was bound under O. XXI, Rule 92 (1) to confirm the sale at once. But because of the compromise between the parties by which the respondents were given time upto November 21, 1958 the court rightly postponed the question of confirmation of sale till that date by consent of parties. But the fact remains that the application under Order XXI, Rule 90 had been dismissed on October 7, 1958 and thereafter, the court was bound to confirm the sale but for the compromise between the parties giving time upto November 21,are of the view that in the circumstances it was not open to the executing court to extend time without consent of parties, for time between October 7, 1958 to November 21, 1958 was granted by consent of parties. Section 148 of theCode of Civil Procedure would not apply in these circumstances, and the executing court was right in holding that it could not extend time. Thereafter it rightly confirmed the sale as required under Order XXI, Rule 92 there being no question of the application of Order XXXIV, Rule 5 for the money had not been deposited on November 22, 1958 before the order of confirmation was passed. In this view of the matter, we are of opinion that the order of the executing court refusing grant of time and confirming the sale wasappears however that the grant of time on October 7, 1958 was as a result of an oral compromise between the parties. This is quite clear from the fact that the application under Order XXI, Rule 90 was withdrawn on the basis that time would be granted. The fact that time was actually granted for six weeks does not mean that that was done without the consent of the parties. It seems to us that the whole thing took place in the presence of the court and the order granting time upto November 21, 1958 must in the circumstances be read as a consent order. It is borne out by the fact that on November 22, 1958 the same presiding judge of the executing court said that time had been granted with the consent of the parties by way of compromise. We cannot therefore accept the contention that time was not granted by consent of parties and therefore the court had power under Section 148 to extend time which had already been granted.
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Management Of Addisons Paints And Chemicals Ltd Vs. Workmen, Represented By The Secretary Assistants Association And Anr | S.N. Variava, J.These Appeals are against a Judgment dated 6th March, 1996. The parties will be referred to in the capacity in Civil Appeal No. 410 of 1997. 2. Briefly stated the facts are as follow : The Appellant is the Union who is representing the cause of a workman by name Nagarajan. The said Nagarajan was appointed as a Trainee Chemist in the Respondent Company on 25th May, 1962. On 15th February, 1973 Nagarajan and others were appointed as Junior Management Assistants on a consolidated pay. They were then put on a service contract for 5 years. On 17th January, 1977 Nagarajan was transferred as Technical Representative to Chennai. 3. In 1986 the Junior Management Assistant raised a dispute which was referred to the Industrial Tribunal. By an Award dated 29th December, 1986 it was held that the Junior Management Assistants were workmen under the Industrial Disputes Act. It was, however, held that the Sales Representative would not be a workman. 4. On 25th July, 1988 Nagarajan was transferred as a Sales Representative. The said Nagarajan refused to accept the transfer and raised an Industrial dispute challenging his transfer to a non-workman category. This dispute was referred to the Industrial Tribunal on 22nd December, 1989. The Tribunal rejected this demand on 7th February, 1992. The Writ Petition which was filed was dismissed on 23rd April, 1994. 5. A appeal was filed against the dismissal of the Writ Petition. In that Appeal, on 16th February, 1996, the Management gave an undertaking that Nagarajan would be treated as a technical staff and given benefits as a workman. We are informed that pursuant to this undertaking Nagarajan has joined duty. The Appeal came to be dismissed by the impugned judgment dated 6th March, 1996. However, the Appellate Court directed the Respondent Company to pay 25% back wages, provided Nagarajan immediately join the duty. Against this judgment the Union has filed Civil Appeal No. 410 of 1997 and the Respondent Company has filed Civil Appeal No. 392 of 1997. 6. We have heard the parties, read the impugned judgment as well as the judgment of the Single Judge and the Award of the Tribunal. In our view, there is no infirmity either in the Award or in the judgment of the Single Judge or in the judgment of the Division Bench. The employee Nagarajan had refused to accept the transfer order and refused to report for duty after his transfer. We see no substance in the contention that he was entitled not to join. In our view the dispute could have been raised and agitated even after joining. There was no justification for not reporting for duty. In spite of Nagarajan not having worked he has been awarded 25% of back wages. This was within the discretion of the Court and we see no reason to interfere. | 1[ds]6. We have heard the parties, read the impugned judgment as well as the judgment of the Single Judge and the Award of the Tribunal. In our view, there is no infirmity either in the Award or in the judgment of the Single Judge or in the judgment of the Division Bench. The employee Nagarajan had refused to accept the transfer order and refused to report for duty after his transfer. We see no substance in the contention that he was entitled not to join. In our view the dispute could have been raised and agitated even after joining. There was no justification for not reporting for duty. In spite of Nagarajan not having worked he has been awarded 25% of back wages. This was within the discretion of the Court and we see no reason to interfere. | 1 | 534 | 154 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
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S.N. Variava, J.These Appeals are against a Judgment dated 6th March, 1996. The parties will be referred to in the capacity in Civil Appeal No. 410 of 1997. 2. Briefly stated the facts are as follow : The Appellant is the Union who is representing the cause of a workman by name Nagarajan. The said Nagarajan was appointed as a Trainee Chemist in the Respondent Company on 25th May, 1962. On 15th February, 1973 Nagarajan and others were appointed as Junior Management Assistants on a consolidated pay. They were then put on a service contract for 5 years. On 17th January, 1977 Nagarajan was transferred as Technical Representative to Chennai. 3. In 1986 the Junior Management Assistant raised a dispute which was referred to the Industrial Tribunal. By an Award dated 29th December, 1986 it was held that the Junior Management Assistants were workmen under the Industrial Disputes Act. It was, however, held that the Sales Representative would not be a workman. 4. On 25th July, 1988 Nagarajan was transferred as a Sales Representative. The said Nagarajan refused to accept the transfer and raised an Industrial dispute challenging his transfer to a non-workman category. This dispute was referred to the Industrial Tribunal on 22nd December, 1989. The Tribunal rejected this demand on 7th February, 1992. The Writ Petition which was filed was dismissed on 23rd April, 1994. 5. A appeal was filed against the dismissal of the Writ Petition. In that Appeal, on 16th February, 1996, the Management gave an undertaking that Nagarajan would be treated as a technical staff and given benefits as a workman. We are informed that pursuant to this undertaking Nagarajan has joined duty. The Appeal came to be dismissed by the impugned judgment dated 6th March, 1996. However, the Appellate Court directed the Respondent Company to pay 25% back wages, provided Nagarajan immediately join the duty. Against this judgment the Union has filed Civil Appeal No. 410 of 1997 and the Respondent Company has filed Civil Appeal No. 392 of 1997. 6. We have heard the parties, read the impugned judgment as well as the judgment of the Single Judge and the Award of the Tribunal. In our view, there is no infirmity either in the Award or in the judgment of the Single Judge or in the judgment of the Division Bench. The employee Nagarajan had refused to accept the transfer order and refused to report for duty after his transfer. We see no substance in the contention that he was entitled not to join. In our view the dispute could have been raised and agitated even after joining. There was no justification for not reporting for duty. In spite of Nagarajan not having worked he has been awarded 25% of back wages. This was within the discretion of the Court and we see no reason to interfere.
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1
### Explanation:
6. We have heard the parties, read the impugned judgment as well as the judgment of the Single Judge and the Award of the Tribunal. In our view, there is no infirmity either in the Award or in the judgment of the Single Judge or in the judgment of the Division Bench. The employee Nagarajan had refused to accept the transfer order and refused to report for duty after his transfer. We see no substance in the contention that he was entitled not to join. In our view the dispute could have been raised and agitated even after joining. There was no justification for not reporting for duty. In spite of Nagarajan not having worked he has been awarded 25% of back wages. This was within the discretion of the Court and we see no reason to interfere.
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H.M.T. House Building Co-Op. Society Vs. Syed Khader | appropriate Government is not just a formality; it is a condition precedent to the exercise of the power of acquisition by the appropriate Government for a housing scheme of a co-operative society.22. In the present case, a hybrid procedure appears to have been followed. Initially, the appellant society through M/s. S. R. Constructions purported to acquire the lands by negotiation and sale by the land holders. Then from terms of the agreement dated 17-3-1988, it appears that the procedure prescribed in Part-VII was to be followed and the lands were to be acquired at the cost of the appellant society treating it to be a "company". The allegation made on behalf of the appellant society that the housing scheme had been approved by the appropriate Government on 7-11-1984 shall not be deemed to be a prior approval within the meaning of Section 3(f)(vi) but an order giving previous consent as required by Section 39 of Part-VII of the Act. In the agreement dated 17-3-1988 it has been specifically stated "And whereas the Government having caused inquiry to be made in conformity with the provisions of the said Act and being satisfied as a result of such inquiry that the acquisition of the said land is needed for the purpose referred to above has consented to the provisions of the said act being in force in order to acquire the said land for the benefit of the society members to enter in the agreement hereinafter contained with the Government". (emphasis supplied)But, ultimately, the lands have been acquired on behalf of the appropriate Government treating the requirement of the appellant society as for a public purpose within the meaning of Section 3(f)(vi). It is surprising as to how respondent M/s. S. R. Constructions entered into agreement with the appellant society assuring it that the lands, details of which were given in the agreement itself, shall be acquired by the State Government by following the procedure of Sections 4(1) and 6(1) and for this, more than one crore of rupees was paid to M/s. S. R. Constructions (respondent No.11). 23. Mr. G. Ramaswami, learned senior counsel appearing on behalf of the appellant, submitted that merely because the appellant society had entered into an agreement with respondent No.11, M/s. S. R. Constructions in which the latter for the consideration paid to it had assured that the lands in question shall be acquired by the State Government, no adverse inference should be drawn because that may amount to a tall claim made on behalf of M/s. S. R. Constructions in the agreement. He pointed out that the notifications under Section 4(1) and 6(1) have been issued beyond the time stipulated in the agreement and as such, it should be held that the State Government has exercised its statutory power for acquisition of the lands in normal course, only after taking all facts and circumstances into consideration. There is no dispute that in terms of agreement dated 1-2-1985 payments have been made by the appellant society to M/s. S. R. Constructions. This circumstances alone goes a long way to support the contention of the writ petitioners that their lands have not been acquired in normal course or for any public purpose. In spite of the repeated query, the learned counsel appearing for the appellant society could not point out or produce any order of the State Government under Section 3(f)(vi) of the Act granting prior approval and prescribing conditions and restrictions in respect of the use of the lands which were to be acquired for a public purpose. There is no restriction or bar on the part of the appellant society on carving out the size of the plots or the manner of allotment or in respect of construction over the same. That is why the framers of the Act have required the appropriate Government to grant prior approval of any housing scheme presented by any co-operative society before the lands are acquired treating such requirement and acquisition for public purpose. It is incumbent on part of the appropriate Government while granting approval to examine different aspects of the matter so that it may serve the public interest and not the interest of few who can as well afford to acquire such lands by negotiation in open market. According to us, the State Government has not granted the prior approval in terms of Section 3(f)(vi) of the Act to the housing scheme in question. The power under Sections 4(1) and 6(1) of the Act has been exercised for extraneous consideration and at the instance of the persons, who had no role in the decision making process - whether the acquisition of the lands in question shall be for a public purpose. This itself is enough to vitiate the whole acquisition proceeding and render the same as invalid.24. In the present case there has been contravention of Section 3(f)(vi) of the Act inasmuch as there was no prior approval of the State Government as required by the said Section before steps for acquisition of the lands were taken. The report of Shri G.K.V. Rao points out as to how the appellant society admitted large number of persons as members who cannot be held to be genuine members, the sole object being to transfer the lands acquired for public purpose to outsiders as part of commercial venture, undertaken by the officer bearer of the appellant society. We are in agreement with the finding of the High Court that the statutory notifications issued under Section 4(1) and 6(1) of the Act have been issued due to the role played by M/s. S. R. Constructions, respondent No.11. On the materials on record High Court was justified in coming to the conclusion that the proceedings for acquisition of the lands had not been initiated because the State Government was satisfied about the existence of the public purpose but at the instance of agent who had collected more than a crore of rupees for getting the lands acquired by the State Government. | 0[ds]10. From the judgment of the High Court, it further appears that not only the acquisition of lands in favour of seven Housing Co-operative Societies, who were respondents to the different Writ Petitions, but also the acquisition of lands in favour of more than one hundred housing societies, which had sprung up within the Bangalore Metropolitan Planning Area became the matter of public debate and criticism. As a result of which a statutory enquiry under Section 64 of the Karnataka Co-operative Societies Act was directed by the Registered of Co-operative Societies. The enquiry was held by Shri G.V.K. Rao, the Controller of Weights and Measures, who submitted his Report in respect of different housing societies including the appellant Society. The said Report was produced before the High Court. In the Report, it has been pointed out that most predominant irregularities committed by many of the Societies was in respect of admission of members. In many cases, the committees of management did not consider the applications for membership and there was no proper resolutions specifying the persons who were admitted as members of the Society. There was no record on which date the said members were admitted by the different Housing Co-operative Societies. It was also said in the Report that the societies admitted persons, who were not eligible to become members. In respect of the appellant society, it was said in the Report, which has been referred to by the High Court in its judgment that membership was open to any person above 18 years of age and it left scope for admitting non-employees of HMT as members. From the scrutiny of the applications, it transpired that many who had been admitted as members, were neither employees of the HMT nor residents within the jurisdiction of the Society. It was also pointed out that the appellant had entered into an agreement with the Estate Agent S.R. Constructions and had paid a total amount of Rs.92,52,938/- to the said agent and Rs.35 lakhs to special Land Acquisitionwas said that it was necessary that the Government should frame rules for according previous approval for acquisition of lands for the housing co-operative societies inter alia prescribing the essential requirements of a housing scheme and also prescribing the procedure for inquiry and report to aid the Government to come to the conclusion as to whether the previous approval should be given for any scheme prepared by any of the house building societies which requires the Government to acquire any land for carrying out any such scheme.There is no dispute that the Society with which we are concerned shall not be covered by the expression "corporation owned or controlled by the State", because the said expression shall include a co-operative society, being a co-operative society in which not less than 51 per centum of the paid-up share capital is held by the Central Government, or by any State Government or Governments, or partly by the Central Government and partly by one or more State Governments.15. The substituted definition of the expression "Company" in Section 3(e)(iii) will certainly include the appellant society. The substituted definition of the expression "Company" shall include co-operative society, within the meaning of any law relating to co-operative societies other than those referred to in Clause (cc) of Section 3 of the Act. Such co-operative society shall be deemed to be a company, to which provisions of Chapter VII relating to acquisition of land for company shall be applicable.16. In view of the substituted definition of the expression "public purpose", in Section 3(f)(vi), the provision for carrying out any housing scheme sponsored by the Government or by any authority established by Government for carrying out any such scheme shall be deemed to be a "public purpose". It further says that the provision of land for carrying out any housing scheme with prior approval of the State Government by a co-operative society within the meaning of any law relating to co-operative societies for the time being in force in any State, shall be deemed to be a "public purpose". As such for any housing co-operative society lands can be acquired by the appropriate Government, treating the same as acquisition for the public purpose. But, in that event, there has to be a prior approval of such scheme by the appropriate Government. When the lands are acquired for any co-operative society with prior approval of the scheme by the State Government, there is no question of application of the provisions of Part-VII of the Act. Such acquisition shall be on the mode of acquisition by the appropriate Government for any public purpose.17. If lands are acquired for any co-operative society treating it to be a company within the meaning of Section 3(e), then in view of Section 39 of the Act the provisions of Section 6 to 16 and Section 18 to 37 shall not be put in force unless there is previous consent of the appropriate Government, and the co-operative society has executed an agreement. The consent required under Section 39 of the Act has to be given by the appropriate Government only after the conditions mentioned in Section 40 are fulfilled.According to us, in Section 3(f)(vi) the expression "housing" has been used along with educational and health schemes. As such the housing scheme contemplated by Section 3(f)(vi) shall be such housing scheme which shall serve the maximum number of members of the society. Such housing scheme should prove to be useful to the public. That is why the Parliament while introducing a new definition of "public purpose", said that any scheme submitted by any co-operative society relating to housing, must receive prior approval of the appropriate Government and then only the acquisition of the land for such scheme can be held to be for public purpose. If requirement of Section 3(f)(vi) is not strictly enforced, every housing co-operative society shall approach the appropriate Government for acquisition by applying Section 3(f)(vi) instead of pursuing the acquisition under Part VII of the Act which has become more rigorous and restrictive. In this background, it has to be held that the prior approval, required by Section 3(f)(vi), of the appropriate Government is not just a formality; it is a condition precedent to the exercise of the power of acquisition by the appropriate Government for a housing scheme of a co-operative society.22. In the present case, a hybrid procedure appears to have been followed. Initially, the appellant society through M/s. S. R. Constructions purported to acquire the lands by negotiation and sale by the land holders. Then from terms of the agreement dated 17-3-1988, it appears that the procedure prescribed in Part-VII was to be followed and the lands were to be acquired at the cost of the appellant society treating it to be a "company". The allegation made on behalf of the appellant society that the housing scheme had been approved by the appropriate Government on 7-11-1984 shall not be deemed to be a prior approval within the meaning of Section 3(f)(vi) but an order giving previous consent as required by Section 39 of Part-VII of the Act. In the agreement dated 17-3-1988 it has been specifically stated "And whereas the Government having caused inquiry to be made in conformity with the provisions of the said Act and being satisfied as a result of such inquiry that the acquisition of the said land is needed for the purpose referred to above has consented to the provisions of the said act being in force in order to acquire the said land for the benefit of the society members to enter in the agreement hereinafter contained with the Government". (emphasis supplied)But, ultimately, the lands have been acquired on behalf of the appropriate Government treating the requirement of the appellant society as for a public purpose within the meaning of Section 3(f)(vi). It is surprising as to how respondent M/s. S. R. Constructions entered into agreement with the appellant society assuring it that the lands, details of which were given in the agreement itself, shall be acquired by the State Government by following the procedure of Sections 4(1) and 6(1) and for this, more than one crore of rupees was paid to M/s. S. R. Constructions (respondentis no dispute that in terms of agreement dated 1-2-1985 payments have been made by the appellant society to M/s. S. R. Constructions. This circumstances alone goes a long way to support the contention of the writ petitioners that their lands have not been acquired in normal course or for any public purpose. In spite of the repeated query, the learned counsel appearing for the appellant society could not point out or produce any order of the State Government under Section 3(f)(vi) of the Act granting prior approval and prescribing conditions and restrictions in respect of the use of the lands which were to be acquired for a public purpose. There is no restriction or bar on the part of the appellant society on carving out the size of the plots or the manner of allotment or in respect of construction over the same. That is why the framers of the Act have required the appropriate Government to grant prior approval of any housing scheme presented by any co-operative society before the lands are acquired treating such requirement and acquisition for public purpose. It is incumbent on part of the appropriate Government while granting approval to examine different aspects of the matter so that it may serve the public interest and not the interest of few who can as well afford to acquire such lands by negotiation in open market. According to us, the State Government has not granted the prior approval in terms of Section 3(f)(vi) of the Act to the housing scheme in question. The power under Sections 4(1) and 6(1) of the Act has been exercised for extraneous consideration and at the instance of the persons, who had no role in the decision making process - whether the acquisition of the lands in question shall be for a public purpose. This itself is enough to vitiate the whole acquisition proceeding and render the same as invalid.24. In the present case there has been contravention of Section 3(f)(vi) of the Act inasmuch as there was no prior approval of the State Government as required by the said Section before steps for acquisition of the lands were taken. The report of Shri G.K.V. Rao points out as to how the appellant society admitted large number of persons as members who cannot be held to be genuine members, the sole object being to transfer the lands acquired for public purpose to outsiders as part of commercial venture, undertaken by the officer bearer of the appellant society. We are in agreement with the finding of the High Court that the statutory notifications issued under Section 4(1) and 6(1) of the Act have been issued due to the role played by M/s. S. R. Constructions, respondent No.11. On the materials on record High Court was justified in coming to the conclusion that the proceedings for acquisition of the lands had not been initiated because the State Government was satisfied about the existence of the public purpose but at the instance of agent who had collected more than a crore of rupees for getting the lands acquired by the StateHouse Building Co-operative Society Ltd. v. Narayana Reddy and Ors. etc. etc.SPECIAL LEAVE PETITION (C) NOS. 12104-07, 12600-03, 13150-80, 18297-300 OFaccording to us, the facts of the present case are similar to the case of H.M.T. House Building Co-operative Society and there is no scope to interfere with the order of the High Court, quashing the notifications under Sections 4(1) andHousing Building Co-operative Society Ltd. v. State of Karnataka and Ors. etc.SPECIAL LEAVE PETITION (C) NOS. 13114 AND 13339 OFto the finding, the Society had admitted 4,050 bogus members. As such, there is no scope for taking a view ontrary one which we have taken while disposing of the appeals Nos.3011-19/95 (arising out of S.L.P. (C) Nos. 11482-90 of 1991) filed on behalf of the H.M.T. House Building Co-operativee City Chickpet House Building Co-operative Society Ltd. v. Venkamma @ Venkatamma & Ors.SPECIAL LEAVE PETITION (C) NOS. 12032-37 OFto us, the facts of the present case are no way different from that of the H.M.T. House Building Co-operative Society, which has been disposed of by a reasoned(BHEL) House Building Co-op. Society Ltd. v. Sri Neelakantaiah & Ors.) House Building Co-op. Society Ltd. v. Sri Neelakantaiah &Ors.SPECIAL LEAVE PETITION (C) NOS.ng to us, an order dated 9-8-1984 cannot be an order under Section 3(f)(vi) because the definition of public purpose which was introduced by Act 68 of 1984 came in force with effect from 24-9-1984. As such there was no occasion for the State Government to exercise power under Section 3(f)(vi) on 9-8-1984. Any such order must be in terms of Section 39 read with Section 40 of Part VII of the Act, which part is applicable when acquisition of land is made for companies. It is surprising as to how the present House Building Co-op. Society was being treated even as a company on 9-8-1984, because the new definition of company was also introduced in Section 3(e) with effect from | 0 | 6,120 | 2,498 | ### Instruction:
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appropriate Government is not just a formality; it is a condition precedent to the exercise of the power of acquisition by the appropriate Government for a housing scheme of a co-operative society.22. In the present case, a hybrid procedure appears to have been followed. Initially, the appellant society through M/s. S. R. Constructions purported to acquire the lands by negotiation and sale by the land holders. Then from terms of the agreement dated 17-3-1988, it appears that the procedure prescribed in Part-VII was to be followed and the lands were to be acquired at the cost of the appellant society treating it to be a "company". The allegation made on behalf of the appellant society that the housing scheme had been approved by the appropriate Government on 7-11-1984 shall not be deemed to be a prior approval within the meaning of Section 3(f)(vi) but an order giving previous consent as required by Section 39 of Part-VII of the Act. In the agreement dated 17-3-1988 it has been specifically stated "And whereas the Government having caused inquiry to be made in conformity with the provisions of the said Act and being satisfied as a result of such inquiry that the acquisition of the said land is needed for the purpose referred to above has consented to the provisions of the said act being in force in order to acquire the said land for the benefit of the society members to enter in the agreement hereinafter contained with the Government". (emphasis supplied)But, ultimately, the lands have been acquired on behalf of the appropriate Government treating the requirement of the appellant society as for a public purpose within the meaning of Section 3(f)(vi). It is surprising as to how respondent M/s. S. R. Constructions entered into agreement with the appellant society assuring it that the lands, details of which were given in the agreement itself, shall be acquired by the State Government by following the procedure of Sections 4(1) and 6(1) and for this, more than one crore of rupees was paid to M/s. S. R. Constructions (respondent No.11). 23. Mr. G. Ramaswami, learned senior counsel appearing on behalf of the appellant, submitted that merely because the appellant society had entered into an agreement with respondent No.11, M/s. S. R. Constructions in which the latter for the consideration paid to it had assured that the lands in question shall be acquired by the State Government, no adverse inference should be drawn because that may amount to a tall claim made on behalf of M/s. S. R. Constructions in the agreement. He pointed out that the notifications under Section 4(1) and 6(1) have been issued beyond the time stipulated in the agreement and as such, it should be held that the State Government has exercised its statutory power for acquisition of the lands in normal course, only after taking all facts and circumstances into consideration. There is no dispute that in terms of agreement dated 1-2-1985 payments have been made by the appellant society to M/s. S. R. Constructions. This circumstances alone goes a long way to support the contention of the writ petitioners that their lands have not been acquired in normal course or for any public purpose. In spite of the repeated query, the learned counsel appearing for the appellant society could not point out or produce any order of the State Government under Section 3(f)(vi) of the Act granting prior approval and prescribing conditions and restrictions in respect of the use of the lands which were to be acquired for a public purpose. There is no restriction or bar on the part of the appellant society on carving out the size of the plots or the manner of allotment or in respect of construction over the same. That is why the framers of the Act have required the appropriate Government to grant prior approval of any housing scheme presented by any co-operative society before the lands are acquired treating such requirement and acquisition for public purpose. It is incumbent on part of the appropriate Government while granting approval to examine different aspects of the matter so that it may serve the public interest and not the interest of few who can as well afford to acquire such lands by negotiation in open market. According to us, the State Government has not granted the prior approval in terms of Section 3(f)(vi) of the Act to the housing scheme in question. The power under Sections 4(1) and 6(1) of the Act has been exercised for extraneous consideration and at the instance of the persons, who had no role in the decision making process - whether the acquisition of the lands in question shall be for a public purpose. This itself is enough to vitiate the whole acquisition proceeding and render the same as invalid.24. In the present case there has been contravention of Section 3(f)(vi) of the Act inasmuch as there was no prior approval of the State Government as required by the said Section before steps for acquisition of the lands were taken. The report of Shri G.K.V. Rao points out as to how the appellant society admitted large number of persons as members who cannot be held to be genuine members, the sole object being to transfer the lands acquired for public purpose to outsiders as part of commercial venture, undertaken by the officer bearer of the appellant society. We are in agreement with the finding of the High Court that the statutory notifications issued under Section 4(1) and 6(1) of the Act have been issued due to the role played by M/s. S. R. Constructions, respondent No.11. On the materials on record High Court was justified in coming to the conclusion that the proceedings for acquisition of the lands had not been initiated because the State Government was satisfied about the existence of the public purpose but at the instance of agent who had collected more than a crore of rupees for getting the lands acquired by the State Government.
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### Explanation:
in conformity with the provisions of the said Act and being satisfied as a result of such inquiry that the acquisition of the said land is needed for the purpose referred to above has consented to the provisions of the said act being in force in order to acquire the said land for the benefit of the society members to enter in the agreement hereinafter contained with the Government". (emphasis supplied)But, ultimately, the lands have been acquired on behalf of the appropriate Government treating the requirement of the appellant society as for a public purpose within the meaning of Section 3(f)(vi). It is surprising as to how respondent M/s. S. R. Constructions entered into agreement with the appellant society assuring it that the lands, details of which were given in the agreement itself, shall be acquired by the State Government by following the procedure of Sections 4(1) and 6(1) and for this, more than one crore of rupees was paid to M/s. S. R. Constructions (respondentis no dispute that in terms of agreement dated 1-2-1985 payments have been made by the appellant society to M/s. S. R. Constructions. This circumstances alone goes a long way to support the contention of the writ petitioners that their lands have not been acquired in normal course or for any public purpose. In spite of the repeated query, the learned counsel appearing for the appellant society could not point out or produce any order of the State Government under Section 3(f)(vi) of the Act granting prior approval and prescribing conditions and restrictions in respect of the use of the lands which were to be acquired for a public purpose. There is no restriction or bar on the part of the appellant society on carving out the size of the plots or the manner of allotment or in respect of construction over the same. That is why the framers of the Act have required the appropriate Government to grant prior approval of any housing scheme presented by any co-operative society before the lands are acquired treating such requirement and acquisition for public purpose. It is incumbent on part of the appropriate Government while granting approval to examine different aspects of the matter so that it may serve the public interest and not the interest of few who can as well afford to acquire such lands by negotiation in open market. According to us, the State Government has not granted the prior approval in terms of Section 3(f)(vi) of the Act to the housing scheme in question. The power under Sections 4(1) and 6(1) of the Act has been exercised for extraneous consideration and at the instance of the persons, who had no role in the decision making process - whether the acquisition of the lands in question shall be for a public purpose. This itself is enough to vitiate the whole acquisition proceeding and render the same as invalid.24. In the present case there has been contravention of Section 3(f)(vi) of the Act inasmuch as there was no prior approval of the State Government as required by the said Section before steps for acquisition of the lands were taken. The report of Shri G.K.V. Rao points out as to how the appellant society admitted large number of persons as members who cannot be held to be genuine members, the sole object being to transfer the lands acquired for public purpose to outsiders as part of commercial venture, undertaken by the officer bearer of the appellant society. We are in agreement with the finding of the High Court that the statutory notifications issued under Section 4(1) and 6(1) of the Act have been issued due to the role played by M/s. S. R. Constructions, respondent No.11. On the materials on record High Court was justified in coming to the conclusion that the proceedings for acquisition of the lands had not been initiated because the State Government was satisfied about the existence of the public purpose but at the instance of agent who had collected more than a crore of rupees for getting the lands acquired by the StateHouse Building Co-operative Society Ltd. v. Narayana Reddy and Ors. etc. etc.SPECIAL LEAVE PETITION (C) NOS. 12104-07, 12600-03, 13150-80, 18297-300 OFaccording to us, the facts of the present case are similar to the case of H.M.T. House Building Co-operative Society and there is no scope to interfere with the order of the High Court, quashing the notifications under Sections 4(1) andHousing Building Co-operative Society Ltd. v. State of Karnataka and Ors. etc.SPECIAL LEAVE PETITION (C) NOS. 13114 AND 13339 OFto the finding, the Society had admitted 4,050 bogus members. As such, there is no scope for taking a view ontrary one which we have taken while disposing of the appeals Nos.3011-19/95 (arising out of S.L.P. (C) Nos. 11482-90 of 1991) filed on behalf of the H.M.T. House Building Co-operativee City Chickpet House Building Co-operative Society Ltd. v. Venkamma @ Venkatamma & Ors.SPECIAL LEAVE PETITION (C) NOS. 12032-37 OFto us, the facts of the present case are no way different from that of the H.M.T. House Building Co-operative Society, which has been disposed of by a reasoned(BHEL) House Building Co-op. Society Ltd. v. Sri Neelakantaiah & Ors.) House Building Co-op. Society Ltd. v. Sri Neelakantaiah &Ors.SPECIAL LEAVE PETITION (C) NOS.ng to us, an order dated 9-8-1984 cannot be an order under Section 3(f)(vi) because the definition of public purpose which was introduced by Act 68 of 1984 came in force with effect from 24-9-1984. As such there was no occasion for the State Government to exercise power under Section 3(f)(vi) on 9-8-1984. Any such order must be in terms of Section 39 read with Section 40 of Part VII of the Act, which part is applicable when acquisition of land is made for companies. It is surprising as to how the present House Building Co-op. Society was being treated even as a company on 9-8-1984, because the new definition of company was also introduced in Section 3(e) with effect from
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Rajamanicka Mathurar Vs. Dharmaraj and Others | 1. This appeal by special leave is directed against a judgment dated December 13, 1968 of a learned single Judge of the High Court of Madras. The facts shortly are as follows :2. The appellant is the 7th defendant and respondents 1 to 14, are respectively the plaintiff, 1st defendant, 3rd defendant and 4th defendant on the file of the District Munsifs Court at Mannargudi. The plaintiff filed a suit in the Court of the Munsifs for a declaration of his title to the suit property and for recover of the possession together with future mesne profits. His case was the appellant (defendant 7) who had married his elder sister, Ayi Manickathammal, had no children by her and the he was brought up from his very childhood by the appellant who out of love and affection, executed a settlement deed (Ex. A-2) on February 5, 1952 in respect of the 2 items of suit properties and the appellant was looking after the properties on his behalf because the donee-plaintiff was a minor.3. The trial Court decreed the suit. The 1st appellate Court reversed the decree and dismissed the suit. In second appeal the High Court set aside the decree of the appellate Court and remanded the case to it, with the following observations and directions :The learned Judge of the lower appellate Court seems to have been prepared to swallow his case wholesale, hook line and sinker. I am afraid that the conclusion of the learned appellate Judge suffers from a number of defects like ignoring relevant considerations and laying undue stress upon irrelevant considerations. If the matter stood as it is, I would have been prepared to consider whether the appeal should not have been allowed straightway. But as the question regarding the rights of the other defendants has not been considered by the lower appellate Court, I am of opinion, that the lower appellate Court should be asked to reconsider the matter from the proper perspective also taking into consideration the rights of defendants 1, 3 and 4.4. It is manifest that the High Court has not pointed out what relevant considerations were ignored and what irrelevant considerations were taken into account by the 1st appellate Court. Nor did it specify "the proper perspective from which the lower appellate Court was to reconsider the matter". Further, its remark that the lower appellate Court "seems to have been prepared to swallow the defence case wholesale, hook, line and sinker is too sweeping and may prejudice a fire and fair reconsideration of the matter by the 1st appellate Court after the remand. If we may say so with great respect, the judgment of the High Court is vague and indefinite and does not deserve to be maintained. | 1[ds]4. It is manifest that the High Court has not pointed out what relevant considerations were ignored and what irrelevant considerations were taken into account by the 1st appellate Court. Nor did it specify "the proper perspective from which the lower appellate Court was to reconsider the matter". Further, its remark that the lower appellate Court "seems to have been prepared to swallow the defence case wholesale, hook, line and sinker is too sweeping and may prejudice a fire and fair reconsideration of the matter by the 1st appellate Court after the remand. If we may say so with great respect, the judgment of the High Court is vague and indefinite and does not deserve to be maintained. | 1 | 500 | 134 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
### Input:
1. This appeal by special leave is directed against a judgment dated December 13, 1968 of a learned single Judge of the High Court of Madras. The facts shortly are as follows :2. The appellant is the 7th defendant and respondents 1 to 14, are respectively the plaintiff, 1st defendant, 3rd defendant and 4th defendant on the file of the District Munsifs Court at Mannargudi. The plaintiff filed a suit in the Court of the Munsifs for a declaration of his title to the suit property and for recover of the possession together with future mesne profits. His case was the appellant (defendant 7) who had married his elder sister, Ayi Manickathammal, had no children by her and the he was brought up from his very childhood by the appellant who out of love and affection, executed a settlement deed (Ex. A-2) on February 5, 1952 in respect of the 2 items of suit properties and the appellant was looking after the properties on his behalf because the donee-plaintiff was a minor.3. The trial Court decreed the suit. The 1st appellate Court reversed the decree and dismissed the suit. In second appeal the High Court set aside the decree of the appellate Court and remanded the case to it, with the following observations and directions :The learned Judge of the lower appellate Court seems to have been prepared to swallow his case wholesale, hook line and sinker. I am afraid that the conclusion of the learned appellate Judge suffers from a number of defects like ignoring relevant considerations and laying undue stress upon irrelevant considerations. If the matter stood as it is, I would have been prepared to consider whether the appeal should not have been allowed straightway. But as the question regarding the rights of the other defendants has not been considered by the lower appellate Court, I am of opinion, that the lower appellate Court should be asked to reconsider the matter from the proper perspective also taking into consideration the rights of defendants 1, 3 and 4.4. It is manifest that the High Court has not pointed out what relevant considerations were ignored and what irrelevant considerations were taken into account by the 1st appellate Court. Nor did it specify "the proper perspective from which the lower appellate Court was to reconsider the matter". Further, its remark that the lower appellate Court "seems to have been prepared to swallow the defence case wholesale, hook, line and sinker is too sweeping and may prejudice a fire and fair reconsideration of the matter by the 1st appellate Court after the remand. If we may say so with great respect, the judgment of the High Court is vague and indefinite and does not deserve to be maintained.
### Response:
1
### Explanation:
4. It is manifest that the High Court has not pointed out what relevant considerations were ignored and what irrelevant considerations were taken into account by the 1st appellate Court. Nor did it specify "the proper perspective from which the lower appellate Court was to reconsider the matter". Further, its remark that the lower appellate Court "seems to have been prepared to swallow the defence case wholesale, hook, line and sinker is too sweeping and may prejudice a fire and fair reconsideration of the matter by the 1st appellate Court after the remand. If we may say so with great respect, the judgment of the High Court is vague and indefinite and does not deserve to be maintained.
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C.B.I Vs. V.Vijay Sai Reddy | to approach the High Court of Andhra Pradesh through their legal advisors. Admittedly, he had not brought any information as required under the notice dated 13.06.2012 on the advise of the respondent herein (A-2). As rightly pointed out, there is no need to go to High Court to get specific direction for each and every thing. When the Investigating Officer is in need of certain documents/information for verification with reference to the investigation it is but proper to place all the materials under Section 91 of the Code. Likewise, further statement of one Shri Sanjay S. Mitra dated 07.12.2012 was pressed into service. When the attention was drawn to the said person pointing out that his replies are intended to protect directly the people involved in the above transactions including his Managing Director Puneet Dalmia and Vijay Sai Reddy (A-2), his answer was that he is an employee working with Dalmia for salary and he has indications from his management and indirectly from Vijay Sai Reddy (A-2) about not revealing the above transactions and he also informed the things having reservation about his future. These are a few samples pointed out by the counsel for the CBI. 25) Another relevant aspect as pointed out by learned senior counsel for the CBI that bail can be cancelled when lower court granted bail on irrelevant considerations. The High Court accepted the said proposition and observed that “though there appears to be some force in the contention of Shri Kesava Rao, learned standing counsel for the CBI that the Special Judge has taken into consideration certain factors which appear to be not relevant such as not arresting A-1 and certain other observations of learned Special Judge, such as investigation has been completed appear to be incorrect.” Unfortunately, after arriving such conclusion, particularly, criticizing the Special Judge, the High Court on an erroneous ground concluded that “it cannot be said that they are totally irrelevant circumstances, therefore, on that ground, I feel that the bail granted to the respondent cannot be cancelled”. 26) Finally, though it is claimed that respondent herein (A-2) being only a C.A. had rendered his professional advise, in the light of the various serious allegations against him, his nexus with the main accused A-1, contacts with many investors all over India prima facie it cannot be claimed that he acted only as a C.A. and nothing more. It is the assertion of the CBI that the respondent herein (A-2) is the brain behind the alleged economic offence of huge magnitude. The said assertion, in the light of the materials relied on before the Special Court and the High Court and placed in the course of argument before this Court, cannot be ignored lightly. 27) It is true that the Special Judge while granting bail imposed certain conditions and the High Court has also added some more additional conditions, however, taking note of few instances in which how the respondent has acted, it cannot be possible for the investigating agency to collect the remaining materials for the remaining three charge sheets to be filed. In such circumstances, we are satisfied firstly the Special Court took irrelevant materials for consideration for grant of bail and secondly, the High Court having arrived definite conclusion that several findings of Special court are unacceptable or irrelevant but ultimately affirmed the very same order of the special Judge granting bail. 28) While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations. It has also to be kept in mind that for the purpose of granting bail, the Legislature has used the words "reasonable grounds for believing" instead of "the evidence" which means the Court dealing with the grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt. 29) We have highlighted the above aspects to show that the High Court has mistakenly taken into account the irrelevant materials and kept out the relevant materials, which had to be considered for the grant of bail. 30) Taking note of the fact that cancellation of bail necessarily involves the review of a decision already made, it should always be exercised very sparingly by the court of law. 31) In the light of the above discussion, we are of the view that the special Judge committed an error in granting bail and the same was erroneously affirmed by the High Court.32) Taking note of all the aspects discussed above, without expressing any opinion on the merits, we set aside both the orders of the Special Judge and the High Court granting bail to A-2 and allow the appeal filed by the CBI with a direction to complete all the investigation relating to the remaining three charge sheets and file appropriate report before the trial Court within a period of four months from today. Thereafter, the respondent herein is free to renew his prayer for bail before the trial Court and if any such petition is filed, the trial Court is free to consider the prayer for bail independently on its own merits without being influenced by the present appeal. During the course of hearing, it is brought to our notice that the marriage of the daughter of the respondent has been fixed for 26.05.2013. Taking note of the said aspect, we direct the respondent herein to surrender on or before 5-6-2013 before the Special Court for being sent to the custody. 33) | 1[ds]It is true that the Special Judge while granting bail imposed certain conditions and the High Court has also added some more additional conditions, however, taking note of few instances in which how the respondent has acted, it cannot be possible for the investigating agency to collect the remaining materials for the remaining three charge sheets to be filed. In such circumstances, we are satisfied firstly the Special Court took irrelevant materials for consideration for grant of bail and secondly, the High Court having arrived definite conclusion that several findings of Special court are unacceptable or irrelevant but ultimately affirmed the very same order of the special Judge grantingthe light of the above discussion, we are of the view that the special Judge committed an error in granting bail and the same was erroneously affirmed by the High Court.32) Taking note of all the aspects discussed above, without expressing any opinion on the merits, we set aside both the orders of the Special Judge and the High Court granting bail to A-2 and allow the appeal filed by the CBI with a direction to complete all the investigation relating to the remaining three charge sheets and file appropriate report before the trial Court within a period of four months from today. Thereafter, the respondent herein is free to renew his prayer for bail before the trial Court and if any such petition is filed, the trial Court is free to consider the prayer for bail independently on its own merits without being influenced by the present appeal. During the course of hearing, it is brought to our notice that the marriage of the daughter of the respondent has been fixed for 26.05.2013. Taking note of the said aspect, we direct the respondent herein to surrender on or before 5-6-2013 before the Special Court for being sent to the custody. | 1 | 5,508 | 332 | ### 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:
to approach the High Court of Andhra Pradesh through their legal advisors. Admittedly, he had not brought any information as required under the notice dated 13.06.2012 on the advise of the respondent herein (A-2). As rightly pointed out, there is no need to go to High Court to get specific direction for each and every thing. When the Investigating Officer is in need of certain documents/information for verification with reference to the investigation it is but proper to place all the materials under Section 91 of the Code. Likewise, further statement of one Shri Sanjay S. Mitra dated 07.12.2012 was pressed into service. When the attention was drawn to the said person pointing out that his replies are intended to protect directly the people involved in the above transactions including his Managing Director Puneet Dalmia and Vijay Sai Reddy (A-2), his answer was that he is an employee working with Dalmia for salary and he has indications from his management and indirectly from Vijay Sai Reddy (A-2) about not revealing the above transactions and he also informed the things having reservation about his future. These are a few samples pointed out by the counsel for the CBI. 25) Another relevant aspect as pointed out by learned senior counsel for the CBI that bail can be cancelled when lower court granted bail on irrelevant considerations. The High Court accepted the said proposition and observed that “though there appears to be some force in the contention of Shri Kesava Rao, learned standing counsel for the CBI that the Special Judge has taken into consideration certain factors which appear to be not relevant such as not arresting A-1 and certain other observations of learned Special Judge, such as investigation has been completed appear to be incorrect.” Unfortunately, after arriving such conclusion, particularly, criticizing the Special Judge, the High Court on an erroneous ground concluded that “it cannot be said that they are totally irrelevant circumstances, therefore, on that ground, I feel that the bail granted to the respondent cannot be cancelled”. 26) Finally, though it is claimed that respondent herein (A-2) being only a C.A. had rendered his professional advise, in the light of the various serious allegations against him, his nexus with the main accused A-1, contacts with many investors all over India prima facie it cannot be claimed that he acted only as a C.A. and nothing more. It is the assertion of the CBI that the respondent herein (A-2) is the brain behind the alleged economic offence of huge magnitude. The said assertion, in the light of the materials relied on before the Special Court and the High Court and placed in the course of argument before this Court, cannot be ignored lightly. 27) It is true that the Special Judge while granting bail imposed certain conditions and the High Court has also added some more additional conditions, however, taking note of few instances in which how the respondent has acted, it cannot be possible for the investigating agency to collect the remaining materials for the remaining three charge sheets to be filed. In such circumstances, we are satisfied firstly the Special Court took irrelevant materials for consideration for grant of bail and secondly, the High Court having arrived definite conclusion that several findings of Special court are unacceptable or irrelevant but ultimately affirmed the very same order of the special Judge granting bail. 28) While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations. It has also to be kept in mind that for the purpose of granting bail, the Legislature has used the words "reasonable grounds for believing" instead of "the evidence" which means the Court dealing with the grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt. 29) We have highlighted the above aspects to show that the High Court has mistakenly taken into account the irrelevant materials and kept out the relevant materials, which had to be considered for the grant of bail. 30) Taking note of the fact that cancellation of bail necessarily involves the review of a decision already made, it should always be exercised very sparingly by the court of law. 31) In the light of the above discussion, we are of the view that the special Judge committed an error in granting bail and the same was erroneously affirmed by the High Court.32) Taking note of all the aspects discussed above, without expressing any opinion on the merits, we set aside both the orders of the Special Judge and the High Court granting bail to A-2 and allow the appeal filed by the CBI with a direction to complete all the investigation relating to the remaining three charge sheets and file appropriate report before the trial Court within a period of four months from today. Thereafter, the respondent herein is free to renew his prayer for bail before the trial Court and if any such petition is filed, the trial Court is free to consider the prayer for bail independently on its own merits without being influenced by the present appeal. During the course of hearing, it is brought to our notice that the marriage of the daughter of the respondent has been fixed for 26.05.2013. Taking note of the said aspect, we direct the respondent herein to surrender on or before 5-6-2013 before the Special Court for being sent to the custody. 33)
### Response:
1
### Explanation:
It is true that the Special Judge while granting bail imposed certain conditions and the High Court has also added some more additional conditions, however, taking note of few instances in which how the respondent has acted, it cannot be possible for the investigating agency to collect the remaining materials for the remaining three charge sheets to be filed. In such circumstances, we are satisfied firstly the Special Court took irrelevant materials for consideration for grant of bail and secondly, the High Court having arrived definite conclusion that several findings of Special court are unacceptable or irrelevant but ultimately affirmed the very same order of the special Judge grantingthe light of the above discussion, we are of the view that the special Judge committed an error in granting bail and the same was erroneously affirmed by the High Court.32) Taking note of all the aspects discussed above, without expressing any opinion on the merits, we set aside both the orders of the Special Judge and the High Court granting bail to A-2 and allow the appeal filed by the CBI with a direction to complete all the investigation relating to the remaining three charge sheets and file appropriate report before the trial Court within a period of four months from today. Thereafter, the respondent herein is free to renew his prayer for bail before the trial Court and if any such petition is filed, the trial Court is free to consider the prayer for bail independently on its own merits without being influenced by the present appeal. During the course of hearing, it is brought to our notice that the marriage of the daughter of the respondent has been fixed for 26.05.2013. Taking note of the said aspect, we direct the respondent herein to surrender on or before 5-6-2013 before the Special Court for being sent to the custody.
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State of Jammu and Kashmir Vs. Sanaullah Mir | to the Chief Conservator of Forests; the office Note dated 9-6-1955 Ext. P.W. 1/3 and Chanas letter dated 22-6-1955, Ext. P.W. 1/5. On going through these documents it appears to us that under the influence of some high-ups a case was made out for payment of compensation to the respondent in respect of the land acquired 60 years ago by acquiring it again which naturally led to the determination of the market value of the land in or about the year 1955. The State Exchequer cannot be made to suffer for such wanton and illegal actions of its officers. The land had been resumed long ago. It belonged to the State. The whole proceeding of land acquisition was a nullity. The Award resulting therefrom w as also ultra vires and a nullity. It mattered little whether the proceeding was taken as a result of the fraud or mistake or otherwise. We are accepting the findings of the courts below that the respondent had not practised and fraud nor was the l and acquisition proceeding started as a result of any mistake of fact. It was either as a result of gross negligence or a deliberate act on the part of the officials at the instance of some high-ups to help the respondent. It is well-settled that there is no question of any acquisition of the States own land as was purported to be done in this case.In The Government of Bombay v. Esufali Salebhai it has been observed at page 624 thus:-"It is quite true that there can be no such thing as the compulsory acquisition of land, owned by and in the occupation and control of the Crown. The Land Acquisition Act cannot apply to such lands, because all Crown lands being vested in the Government, they are competent and free to devote any of those lands to a public purpose. It is a contradiction in terms to say that the Government are compulsorily acquiring that which they have already acquired otherwise, both as to title and possession." 11. The same view has been taken in Mohammad Wajeeh Mirza v. Secretary of State for India in Council when at page 33 the passage from the judgment of Chandavarkar J. extracted above was quoted with approval. In the case of The Deputy Collector, Calicut Division v. Aiyavu Pillay and others Wallis J. Of the Madras High Court, in our opinion, correctly observed-"It is, in my opinion, clear that the Act does not contemplate or provide for the acquisition of any interest which already belongs to Government in land which is being acquired under the Act but only for the acquisition of such interests in the land. as do not already belong to Government." Venkatarama Ayyar J. speaking for this Court in The Collector of Bombay v. Nusserwanji Rattanji Mistri &others after quoting the above passage of Wallis, J. from the Madras decision aforesaid remarked at page 1322-" With these observations, we are in entire agreement" and added "When Government possesses an interest in land which is the subject of acquisition under the Act, that interest is itself outside such acquisition, because there can be no question of Government acquiring what is its own" 12. The Courts below have heavily relied up on the decision of the Bombay High Court in Secy. of State v. Tayasaheb Yeshwantrao Halkar. This decision, in our opinion, is clearly distinguishable. Firstly the principle in the case of Marriot v. Hamoton which was applied in the Bombay c ase is not applicable in the present case. In the Bombay case the money under the land acquisition Award had been paid and the suit was for its recovery back. In that situation it was held that what was paid under the compulsion of law, namely, the land acquisition Award, cannot be recovered back. In the instant case the money has not yet been paid. The suit is for the cancellation of the Award which is a nullity. The second point of distinction between the Bombay case and the present case is that in the former though the title belonged to the Government, possession was with the other side. In the land acquisition proceeding possession was acquired on payment of compensation. In that event it was held that money paid was not under any mi stake of fact or law. It was paid for divesting the defendant of his possession. In the instant case neither title nor possession was with the defendant. The entire bundle of rights in the land had vested in the State long ago and there was nothing left to be acquired. In such a situation the High Court was wrong in following the Bombay decision and in applying its ratio to the facts of this case.We may briefly dispose of the point of estoppel and res-judicata. We approve of the view taken by Anant Singh, J. in that regard. We may also add that the plea taken in the appeal by filing a petition under order 41, Rule 27 or in the review matter in the High Court was beyond the scope of the appeal filed under the State Land Acquisition Act. The scope of that appeal was the determination of the amount of compensation and not to declare the whole of the land acquisition proceeding a nullity. Whatever, therefore, was said by the High Court either in appeal on the question of adverse possession or while rejecting the review petition was outside the scope of the land acquisition appeal. It could not operate as res-judicata in the present suit. The observations of the High Court were without jurisdiction. Nor did arise any question of estoppel in this case because the respondent was not made to change his position by starting the land acquisition proceeding against him. He had already lost his land. He merely wanted compensation. The method adopted for the payment of compensation was wholly ultra vires and without jurisdiction. That being so no question of estoppel arose in this case. 13. | 1[ds]The Courts below have heavily relied up on the decision of the Bombay High Court in Secy. of State v. Tayasaheb Yeshwantrao Halkar. This decision, in our opinion, is clearly distinguishable. Firstly the principle in the case of Marriot v. Hamoton which was applied in the Bombay c ase is not applicable in the present case. In the Bombay case the money under the land acquisition Award had been paid and the suit was for its recovery back. In that situation it was held that what was paid under the compulsion of law, namely, the land acquisition Award, cannot be recovered back. In the instant case the money has not yet been paid. The suit is for the cancellation of the Award which is a nullity. The second point of distinction between the Bombay case and the present case is that in the former though the title belonged to the Government, possession was with the other side. In the land acquisition proceeding possession was acquired on payment of compensation. In that event it was held that money paid was not under any mi stake of fact or law. It was paid for divesting the defendant of his possession. In the instant case neither title nor possession was with the defendant. The entire bundle of rights in the land had vested in the State long ago and there was nothing left to be acquired. In such a situation the High Court was wrong in following the Bombay decision and in applying its ratio to the facts of this case.We may briefly dispose of the point of estoppel and res-judicata. We approve of the view taken by Anant Singh, J. in that regard. We may also add that the plea taken in the appeal by filing a petition under order 41, Rule 27 or in the review matter in the High Court was beyond the scope of the appeal filed under the State Land Acquisition Act. The scope of that appeal was the determination of the amount of compensation and not to declare the whole of the land acquisition proceeding a nullity. Whatever, therefore, was said by the High Court either in appeal on the question of adverse possession or while rejecting the review petition was outside the scope of the land acquisition appeal. It could not operate as res-judicata in the present suit. The observations of the High Court were without jurisdiction. Nor did arise any question of estoppel in this case because the respondent was not made to change his position by starting the land acquisition proceeding against him. He had already lost his land. He merely wanted compensation. The method adopted for the payment of compensation was wholly ultra vires and without jurisdiction. That being so no question of estoppel arose in this case. | 1 | 3,107 | 506 | ### 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 the Chief Conservator of Forests; the office Note dated 9-6-1955 Ext. P.W. 1/3 and Chanas letter dated 22-6-1955, Ext. P.W. 1/5. On going through these documents it appears to us that under the influence of some high-ups a case was made out for payment of compensation to the respondent in respect of the land acquired 60 years ago by acquiring it again which naturally led to the determination of the market value of the land in or about the year 1955. The State Exchequer cannot be made to suffer for such wanton and illegal actions of its officers. The land had been resumed long ago. It belonged to the State. The whole proceeding of land acquisition was a nullity. The Award resulting therefrom w as also ultra vires and a nullity. It mattered little whether the proceeding was taken as a result of the fraud or mistake or otherwise. We are accepting the findings of the courts below that the respondent had not practised and fraud nor was the l and acquisition proceeding started as a result of any mistake of fact. It was either as a result of gross negligence or a deliberate act on the part of the officials at the instance of some high-ups to help the respondent. It is well-settled that there is no question of any acquisition of the States own land as was purported to be done in this case.In The Government of Bombay v. Esufali Salebhai it has been observed at page 624 thus:-"It is quite true that there can be no such thing as the compulsory acquisition of land, owned by and in the occupation and control of the Crown. The Land Acquisition Act cannot apply to such lands, because all Crown lands being vested in the Government, they are competent and free to devote any of those lands to a public purpose. It is a contradiction in terms to say that the Government are compulsorily acquiring that which they have already acquired otherwise, both as to title and possession." 11. The same view has been taken in Mohammad Wajeeh Mirza v. Secretary of State for India in Council when at page 33 the passage from the judgment of Chandavarkar J. extracted above was quoted with approval. In the case of The Deputy Collector, Calicut Division v. Aiyavu Pillay and others Wallis J. Of the Madras High Court, in our opinion, correctly observed-"It is, in my opinion, clear that the Act does not contemplate or provide for the acquisition of any interest which already belongs to Government in land which is being acquired under the Act but only for the acquisition of such interests in the land. as do not already belong to Government." Venkatarama Ayyar J. speaking for this Court in The Collector of Bombay v. Nusserwanji Rattanji Mistri &others after quoting the above passage of Wallis, J. from the Madras decision aforesaid remarked at page 1322-" With these observations, we are in entire agreement" and added "When Government possesses an interest in land which is the subject of acquisition under the Act, that interest is itself outside such acquisition, because there can be no question of Government acquiring what is its own" 12. The Courts below have heavily relied up on the decision of the Bombay High Court in Secy. of State v. Tayasaheb Yeshwantrao Halkar. This decision, in our opinion, is clearly distinguishable. Firstly the principle in the case of Marriot v. Hamoton which was applied in the Bombay c ase is not applicable in the present case. In the Bombay case the money under the land acquisition Award had been paid and the suit was for its recovery back. In that situation it was held that what was paid under the compulsion of law, namely, the land acquisition Award, cannot be recovered back. In the instant case the money has not yet been paid. The suit is for the cancellation of the Award which is a nullity. The second point of distinction between the Bombay case and the present case is that in the former though the title belonged to the Government, possession was with the other side. In the land acquisition proceeding possession was acquired on payment of compensation. In that event it was held that money paid was not under any mi stake of fact or law. It was paid for divesting the defendant of his possession. In the instant case neither title nor possession was with the defendant. The entire bundle of rights in the land had vested in the State long ago and there was nothing left to be acquired. In such a situation the High Court was wrong in following the Bombay decision and in applying its ratio to the facts of this case.We may briefly dispose of the point of estoppel and res-judicata. We approve of the view taken by Anant Singh, J. in that regard. We may also add that the plea taken in the appeal by filing a petition under order 41, Rule 27 or in the review matter in the High Court was beyond the scope of the appeal filed under the State Land Acquisition Act. The scope of that appeal was the determination of the amount of compensation and not to declare the whole of the land acquisition proceeding a nullity. Whatever, therefore, was said by the High Court either in appeal on the question of adverse possession or while rejecting the review petition was outside the scope of the land acquisition appeal. It could not operate as res-judicata in the present suit. The observations of the High Court were without jurisdiction. Nor did arise any question of estoppel in this case because the respondent was not made to change his position by starting the land acquisition proceeding against him. He had already lost his land. He merely wanted compensation. The method adopted for the payment of compensation was wholly ultra vires and without jurisdiction. That being so no question of estoppel arose in this case. 13.
### Response:
1
### Explanation:
The Courts below have heavily relied up on the decision of the Bombay High Court in Secy. of State v. Tayasaheb Yeshwantrao Halkar. This decision, in our opinion, is clearly distinguishable. Firstly the principle in the case of Marriot v. Hamoton which was applied in the Bombay c ase is not applicable in the present case. In the Bombay case the money under the land acquisition Award had been paid and the suit was for its recovery back. In that situation it was held that what was paid under the compulsion of law, namely, the land acquisition Award, cannot be recovered back. In the instant case the money has not yet been paid. The suit is for the cancellation of the Award which is a nullity. The second point of distinction between the Bombay case and the present case is that in the former though the title belonged to the Government, possession was with the other side. In the land acquisition proceeding possession was acquired on payment of compensation. In that event it was held that money paid was not under any mi stake of fact or law. It was paid for divesting the defendant of his possession. In the instant case neither title nor possession was with the defendant. The entire bundle of rights in the land had vested in the State long ago and there was nothing left to be acquired. In such a situation the High Court was wrong in following the Bombay decision and in applying its ratio to the facts of this case.We may briefly dispose of the point of estoppel and res-judicata. We approve of the view taken by Anant Singh, J. in that regard. We may also add that the plea taken in the appeal by filing a petition under order 41, Rule 27 or in the review matter in the High Court was beyond the scope of the appeal filed under the State Land Acquisition Act. The scope of that appeal was the determination of the amount of compensation and not to declare the whole of the land acquisition proceeding a nullity. Whatever, therefore, was said by the High Court either in appeal on the question of adverse possession or while rejecting the review petition was outside the scope of the land acquisition appeal. It could not operate as res-judicata in the present suit. The observations of the High Court were without jurisdiction. Nor did arise any question of estoppel in this case because the respondent was not made to change his position by starting the land acquisition proceeding against him. He had already lost his land. He merely wanted compensation. The method adopted for the payment of compensation was wholly ultra vires and without jurisdiction. That being so no question of estoppel arose in this case.
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Bhavana Chemicals Limited, Baroda Vs. Commissioner of Income Tax, Gujarat | 1. These appeals are preferred against an order of the Gujarat High Court declining to direct the Tribunal to state the question of law as suggested by the assessee. The questions of law suggested by the assessee are (1) Whether, on the facts and in the circumstances of the case and on a proper interpretation of Section 254, the Tribunal was competent and justified in entertaining and deciding the preliminary point raised by the Revenue(2) Whether, on the facts and in the circumstances of the case and on a proper interpretation of Section 254, the Tribunal was competent and a justified in setting aside the assessment and restoring the matter to the Income Tax Officer in the manner in which it has done 2. Against the order of assessment for the Assessment Years 1969-70 and 1970-71, the assessee filed an appeal claiming certain deductions which were disallowed by the Income Tax Officer. The Appellate Assistant Commissioner allowed those deductions. The order of the Appellate Assistant Commissioner was challenged by the Revenue by way of an appeal before the Tribunal. When the matter came up before the Tribunal for final hearing, the Revenue raised, what is termed, a "preliminary point" to the effect that the Income Tax Officer while computing the income of the assessee Company had erroneously brought to tax income from agriculture and had also correspondingly allowed certain expenses in connection with the agricultural operations. It was argued that the assessee had earned income from agriculture which was not subject to tax and that by allowing expenses which were connected with the agricultural activities the Income Tax Officer committed an error in making the assessment. The Tribunal accepted the said preliminary objection, allowed the appeal and remanded the matter to the Income Tax Officer for making a fresh assessment. The Tribunal observed. "Allowance or otherwise of the claim for various expenses made before us, in our opinion, would depend entirely on the question whether the impugned expenses are closely related to the agricultural activities of the assessee or not. We also feel that it will be unfair to deal only with the aspect regarding agricultural expenses without taking into consideration the fact that the assessee had also large-scale income from agriculture. It is, therefore, necessary, in our opinion that the income relating to the agricultural activities of the assessee company must be segregated and only non-agricultural income should be brought to tax. Since this aspect of the matter has been overlooked by the Income Tax Officer, we think that in the interest of justice, we must set aside these assessments and restore the matter on the file of the Income Tax Officer so that he may re-make the assessments in accordance with law, in the light of our above observation." * 3. The assessee filed an application under Section 256(1) asking the Tribunal to refer the above questions which, on being declined, it went to the High Court which also declined the assessees request.4. Mr. P. H. Parekh, learned counsel for the assessee, contended that the point, which has been accepted by the Tribunal and matter remanded was not open to the Revenue in the said appeal and should not have been allowed to be raised. He submitted that the said ground was not even raised in the grounds of appeal before the Tribunal and was raised for the first time at the time of hearing of the appeal. The learned counsel submitted that the order of assessment may well result in enhancement of the tax payable by the assessee and that such a course is not open to the Tribunal, though it can be done by the Appellate Assistant Commissioner. The learned counsel submitted that there is a sharp difference of opinion among the High Courts a on the powers of the Tribunal to make orders which have the effect of enhancing the assessable income of the assessee. These submissions are met by Mr. J. Ramamurti, learned counsel for the Revenue, relying principally upon the decision of this Court in CIT v. Assam Travels Shipping Service 1993 (S4) SCC 206 : 1993 (99) ITR 1). Mr. Ramamurti relies upon Rule 11 of the Income Tax Appellate Tribunal Rules which empowers the Tribunal not only to permit a party to raise fresh grounds of appeals but also to raise such questions suo motu if it thinks appropriate in the circumstances of the case.5. We are, however, not inclined to go into this question at this stage. The matter has been remanded. Let the Income Tax Officer make an assessment. If the assessee feels aggrieved with the assessment, he can adopt the remedies provided by law wherein he can raise, inter alia, the present questions as well. In this view of the matter, we do not think it necessary to examine the question of power of Tribunal in this matter. | 0[ds]5. We are, however, not inclined to go into this question at this stage. The matter has been remanded. Let the Income Tax Officer make an assessment. If the assessee feels aggrieved with the assessment, he can adopt the remedies provided by law wherein he can raise, inter alia, the present questions as well. In this view of the matter, we do not think it necessary to examine the question of power of Tribunal in this matter | 0 | 885 | 92 | ### 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:
1. These appeals are preferred against an order of the Gujarat High Court declining to direct the Tribunal to state the question of law as suggested by the assessee. The questions of law suggested by the assessee are (1) Whether, on the facts and in the circumstances of the case and on a proper interpretation of Section 254, the Tribunal was competent and justified in entertaining and deciding the preliminary point raised by the Revenue(2) Whether, on the facts and in the circumstances of the case and on a proper interpretation of Section 254, the Tribunal was competent and a justified in setting aside the assessment and restoring the matter to the Income Tax Officer in the manner in which it has done 2. Against the order of assessment for the Assessment Years 1969-70 and 1970-71, the assessee filed an appeal claiming certain deductions which were disallowed by the Income Tax Officer. The Appellate Assistant Commissioner allowed those deductions. The order of the Appellate Assistant Commissioner was challenged by the Revenue by way of an appeal before the Tribunal. When the matter came up before the Tribunal for final hearing, the Revenue raised, what is termed, a "preliminary point" to the effect that the Income Tax Officer while computing the income of the assessee Company had erroneously brought to tax income from agriculture and had also correspondingly allowed certain expenses in connection with the agricultural operations. It was argued that the assessee had earned income from agriculture which was not subject to tax and that by allowing expenses which were connected with the agricultural activities the Income Tax Officer committed an error in making the assessment. The Tribunal accepted the said preliminary objection, allowed the appeal and remanded the matter to the Income Tax Officer for making a fresh assessment. The Tribunal observed. "Allowance or otherwise of the claim for various expenses made before us, in our opinion, would depend entirely on the question whether the impugned expenses are closely related to the agricultural activities of the assessee or not. We also feel that it will be unfair to deal only with the aspect regarding agricultural expenses without taking into consideration the fact that the assessee had also large-scale income from agriculture. It is, therefore, necessary, in our opinion that the income relating to the agricultural activities of the assessee company must be segregated and only non-agricultural income should be brought to tax. Since this aspect of the matter has been overlooked by the Income Tax Officer, we think that in the interest of justice, we must set aside these assessments and restore the matter on the file of the Income Tax Officer so that he may re-make the assessments in accordance with law, in the light of our above observation." * 3. The assessee filed an application under Section 256(1) asking the Tribunal to refer the above questions which, on being declined, it went to the High Court which also declined the assessees request.4. Mr. P. H. Parekh, learned counsel for the assessee, contended that the point, which has been accepted by the Tribunal and matter remanded was not open to the Revenue in the said appeal and should not have been allowed to be raised. He submitted that the said ground was not even raised in the grounds of appeal before the Tribunal and was raised for the first time at the time of hearing of the appeal. The learned counsel submitted that the order of assessment may well result in enhancement of the tax payable by the assessee and that such a course is not open to the Tribunal, though it can be done by the Appellate Assistant Commissioner. The learned counsel submitted that there is a sharp difference of opinion among the High Courts a on the powers of the Tribunal to make orders which have the effect of enhancing the assessable income of the assessee. These submissions are met by Mr. J. Ramamurti, learned counsel for the Revenue, relying principally upon the decision of this Court in CIT v. Assam Travels Shipping Service 1993 (S4) SCC 206 : 1993 (99) ITR 1). Mr. Ramamurti relies upon Rule 11 of the Income Tax Appellate Tribunal Rules which empowers the Tribunal not only to permit a party to raise fresh grounds of appeals but also to raise such questions suo motu if it thinks appropriate in the circumstances of the case.5. We are, however, not inclined to go into this question at this stage. The matter has been remanded. Let the Income Tax Officer make an assessment. If the assessee feels aggrieved with the assessment, he can adopt the remedies provided by law wherein he can raise, inter alia, the present questions as well. In this view of the matter, we do not think it necessary to examine the question of power of Tribunal in this matter.
### Response:
0
### Explanation:
5. We are, however, not inclined to go into this question at this stage. The matter has been remanded. Let the Income Tax Officer make an assessment. If the assessee feels aggrieved with the assessment, he can adopt the remedies provided by law wherein he can raise, inter alia, the present questions as well. In this view of the matter, we do not think it necessary to examine the question of power of Tribunal in this matter
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State Of Orissa Vs. M/S Samantary Constn.Pvt.Ltd | It was also submitted that termination of the contract itself was justified and the Contractor wrongly relied upon the report of the Chief Engineer which was inadmissible in view of Section 81 of the Act. Reference was made to Explanation to Section 34 to the effect that if the award was in violation of Section 81, the same will be in conflict with the public policy of India which is a ground for setting aside the award under Section 34(2)(b)(ii). 15. Learned counsel for the respondents-Contractor supported the view taken by the High Court. It was pointed out that Section 81 of the Act had no relevance as the said section was in part III dealing with conciliation. The conciliation commenced, under Section 62, by acceptance of a written invitation to conciliate and if the parties thereafter appoint a Conciliator who proceeds as per the procedure laid down under the said Chapter of the Act. No such procedure having been followed, the letter of the Chief Engineer cannot be treated to be covered by Section 81 of the Act. The said letter could not be treated to be irrelevant or inadmissible in evidence. In any case, the decision of the Arbitrator with regard to its admissibility and reliability had to be accepted as final. 16. Having considered the rival submission and perused the record, we are of the view that the appeal deserves to be partly allowed. 17. Undoubtedly, the award of the Arbitrator may not be interfered with on the ground that the same was erroneous or on the ground that a different view could be taken on merits of the controversy. In considering an objection to the award, the Court does not sit in appeal over the decision on merits. However, patent error or perversity could certainly provide basis for interference. 18. In Saw Pipes Ltd. (supra), it was held that the expression ‘public policy of India’ has to be construed as being consistent with : (a) fundamental policy of Indian law; or(b) the interest of India; or(c) justice or morality; or(d) if it is patently illegal. 19. In ONGC vs. Western Geco International Ltd. (2014 (9) SCC 263 ), it was observed that the expression ‘fundamental policy of Indian law’ refers to the principles providing basis for administration of justice and enforcement of law in this country which included judicial approach, i.e. not acting arbitrarily or whimsically and acting in a fair, reasonable and objective manner without taking into account any extraneous consideration, following the principles of natural justice, i.e. taking a decision by due application of mind and by recording reasons and taking rational decision which can be decided on the touchstone of Wednesbury (Associated Provincial Picture Houses Ltd. vs. Wednesbury Corpn. (1948) 1 KB 223 : (1947) 2 ALL ER 680 (CA)). 20. In P.R. Shah, Shares & Stock Brokers (P) Ltd. vs. B.H.H. Securities (P) Ltd. (2012 (1) SCC 594 ), it was observed that dealing with an objection to an award, a court does not sit in appeal over the award by reassessing or reappreciating the evidence. 21. The above principles are well recognized and have been reiterated recently in Navodaya Mass Entertainment Ltd. vs. J.M. Combines (2015 (5) SCC 698 ) and Associate Builders vs. Delhi Development Authority (2015 (3) SCC 49 ). 22. Coming to the present case, while we do not find any merit in the contention that Section 81 of the Act vitiated the award on account of inadmissibility of the letter of the Chief Engineer, we do find merit in the contention that there is non application of mind in awarding the amount of Rs.3 crores towards the hire charges. Under the 1996 Act, the award is required to be a reasoned one unless the parties agree that no reasons are to be given or the award is based on agreement (Section 31(3)). The Arbitrator ought to have ascertained the total value of the machinery. Any reasonable person dealing with a claim on account of loss caused by the wrongful seizure of machinery or equipment will certainly enquire into the total value thereof. The hire charges may, at times furnish the basis for determining the compensation but such determination cannot normally exceed the price of the equipment as the loss caused cannot normally be more than the price of the equipment itself. In absence of such examination, the award can certainly be held to be perverse or based on non application of mind. In this view of the matter, either the parties have to be left free to have this issue re-determined which may further delay the matter or we may ourselves determine the claim based on the material on record. The latter course has been suggested by learned counsel.23. Learned counsel for the appellant has pointed out that as per invoice of purchase of the excavator, the price was Rs.27,34,134.75. In respect of the said machinery, claim of the Contractor is Rs.44,77,525/- only upto 31st October, 1989 out of the total claim of Rs.68,44,332/-. The claim could not be upheld beyond the price even if depreciation was not considered. On that basis total claim under Item No.18, on the date of the seizure could not exceed Rs.50 lakhs which appears to be the price of the machinery.24. Taking an overall view including the interest component upto the date of award (as the interest has been awarded only from the date of award) claim of the Contractor could be assessed at Rs. 1 crore 25 lakhs. We are conscious that we are not to substitute our opinion for that of the Arbitrator but since this part of the Award is outrightly perverse and not based on application of minds, we modify the award in respect of Item No.18 to Rs.1 crore 25 lakhs as on the date of the award instead of Rs.3 crores. Subject to this modification, the award is upheld in all other respects. Final calculation and adjustment may be made accordingly before the Executing Court. | 1[ds]17. Undoubtedly, the award of the Arbitrator may not be interfered with on the ground that the same was erroneous or on the ground that a different view could be taken on merits of the controversy. In considering an objection to the award, the Court does not sit in appeal over the decision on merits. However, patent error or perversity could certainly provide basis for interference.Coming to the present case, while we do not find any merit in the contention that Section 81 of the Act vitiated the award on account of inadmissibility of the letter of the Chief Engineer, we do find merit in the contention that there is non application of mind in awarding the amount of Rs.3 crores towards the hire charges. Under the 1996 Act, the award is required to be a reasoned one unless the parties agree that no reasons are to be given or the award is based on agreement (Section 31(3)). The Arbitrator ought to have ascertained the total value of the machinery. Any reasonable person dealing with a claim on account of loss caused by the wrongful seizure of machinery or equipment will certainly enquire into the total value thereof. The hire charges may, at times furnish the basis for determining the compensation but such determination cannot normally exceed the price of the equipment as the loss caused cannot normally be more than the price of the equipment itself. In absence of such examination, the award can certainly be held to be perverse or based on non application of mind. In this view of the matter, either the parties have to be left free to have this issue re-determined which may further delay the matter or we may ourselves determine the claim based on the material on record. The latter course has been suggested by learned counsel.23. Learned counsel for the appellant has pointed out that as per invoice of purchase of the excavator, the price was Rs.27,34,134.75. In respect of the said machinery, claim of the Contractor is Rs.44,77,525/- only upto 31st October, 1989 out of the total claim of Rs.68,44,332/-. The claim could not be upheld beyond the price even if depreciation was not considered. On that basis total claim under Item No.18, on the date of the seizure could not exceed Rs.50 lakhs which appears to be the price of the machinery.24. Taking an overall view including the interest component upto the date of award (as the interest has been awarded only from the date of award) claim of the Contractor could be assessed at Rs. 1 crore 25 lakhs. We are conscious that we are not to substitute our opinion for that of the Arbitrator but since this part of the Award is outrightly perverse and not based on application of minds, we modify the award in respect of Item No.18 to Rs.1 crore 25 lakhs as on the date of the award instead of Rs.3 crores. Subject to this modification, the award is upheld in all other respects. Final calculation and adjustment may be made accordingly before the Executing Court. | 1 | 2,446 | 561 | ### 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:
It was also submitted that termination of the contract itself was justified and the Contractor wrongly relied upon the report of the Chief Engineer which was inadmissible in view of Section 81 of the Act. Reference was made to Explanation to Section 34 to the effect that if the award was in violation of Section 81, the same will be in conflict with the public policy of India which is a ground for setting aside the award under Section 34(2)(b)(ii). 15. Learned counsel for the respondents-Contractor supported the view taken by the High Court. It was pointed out that Section 81 of the Act had no relevance as the said section was in part III dealing with conciliation. The conciliation commenced, under Section 62, by acceptance of a written invitation to conciliate and if the parties thereafter appoint a Conciliator who proceeds as per the procedure laid down under the said Chapter of the Act. No such procedure having been followed, the letter of the Chief Engineer cannot be treated to be covered by Section 81 of the Act. The said letter could not be treated to be irrelevant or inadmissible in evidence. In any case, the decision of the Arbitrator with regard to its admissibility and reliability had to be accepted as final. 16. Having considered the rival submission and perused the record, we are of the view that the appeal deserves to be partly allowed. 17. Undoubtedly, the award of the Arbitrator may not be interfered with on the ground that the same was erroneous or on the ground that a different view could be taken on merits of the controversy. In considering an objection to the award, the Court does not sit in appeal over the decision on merits. However, patent error or perversity could certainly provide basis for interference. 18. In Saw Pipes Ltd. (supra), it was held that the expression ‘public policy of India’ has to be construed as being consistent with : (a) fundamental policy of Indian law; or(b) the interest of India; or(c) justice or morality; or(d) if it is patently illegal. 19. In ONGC vs. Western Geco International Ltd. (2014 (9) SCC 263 ), it was observed that the expression ‘fundamental policy of Indian law’ refers to the principles providing basis for administration of justice and enforcement of law in this country which included judicial approach, i.e. not acting arbitrarily or whimsically and acting in a fair, reasonable and objective manner without taking into account any extraneous consideration, following the principles of natural justice, i.e. taking a decision by due application of mind and by recording reasons and taking rational decision which can be decided on the touchstone of Wednesbury (Associated Provincial Picture Houses Ltd. vs. Wednesbury Corpn. (1948) 1 KB 223 : (1947) 2 ALL ER 680 (CA)). 20. In P.R. Shah, Shares & Stock Brokers (P) Ltd. vs. B.H.H. Securities (P) Ltd. (2012 (1) SCC 594 ), it was observed that dealing with an objection to an award, a court does not sit in appeal over the award by reassessing or reappreciating the evidence. 21. The above principles are well recognized and have been reiterated recently in Navodaya Mass Entertainment Ltd. vs. J.M. Combines (2015 (5) SCC 698 ) and Associate Builders vs. Delhi Development Authority (2015 (3) SCC 49 ). 22. Coming to the present case, while we do not find any merit in the contention that Section 81 of the Act vitiated the award on account of inadmissibility of the letter of the Chief Engineer, we do find merit in the contention that there is non application of mind in awarding the amount of Rs.3 crores towards the hire charges. Under the 1996 Act, the award is required to be a reasoned one unless the parties agree that no reasons are to be given or the award is based on agreement (Section 31(3)). The Arbitrator ought to have ascertained the total value of the machinery. Any reasonable person dealing with a claim on account of loss caused by the wrongful seizure of machinery or equipment will certainly enquire into the total value thereof. The hire charges may, at times furnish the basis for determining the compensation but such determination cannot normally exceed the price of the equipment as the loss caused cannot normally be more than the price of the equipment itself. In absence of such examination, the award can certainly be held to be perverse or based on non application of mind. In this view of the matter, either the parties have to be left free to have this issue re-determined which may further delay the matter or we may ourselves determine the claim based on the material on record. The latter course has been suggested by learned counsel.23. Learned counsel for the appellant has pointed out that as per invoice of purchase of the excavator, the price was Rs.27,34,134.75. In respect of the said machinery, claim of the Contractor is Rs.44,77,525/- only upto 31st October, 1989 out of the total claim of Rs.68,44,332/-. The claim could not be upheld beyond the price even if depreciation was not considered. On that basis total claim under Item No.18, on the date of the seizure could not exceed Rs.50 lakhs which appears to be the price of the machinery.24. Taking an overall view including the interest component upto the date of award (as the interest has been awarded only from the date of award) claim of the Contractor could be assessed at Rs. 1 crore 25 lakhs. We are conscious that we are not to substitute our opinion for that of the Arbitrator but since this part of the Award is outrightly perverse and not based on application of minds, we modify the award in respect of Item No.18 to Rs.1 crore 25 lakhs as on the date of the award instead of Rs.3 crores. Subject to this modification, the award is upheld in all other respects. Final calculation and adjustment may be made accordingly before the Executing Court.
### Response:
1
### Explanation:
17. Undoubtedly, the award of the Arbitrator may not be interfered with on the ground that the same was erroneous or on the ground that a different view could be taken on merits of the controversy. In considering an objection to the award, the Court does not sit in appeal over the decision on merits. However, patent error or perversity could certainly provide basis for interference.Coming to the present case, while we do not find any merit in the contention that Section 81 of the Act vitiated the award on account of inadmissibility of the letter of the Chief Engineer, we do find merit in the contention that there is non application of mind in awarding the amount of Rs.3 crores towards the hire charges. Under the 1996 Act, the award is required to be a reasoned one unless the parties agree that no reasons are to be given or the award is based on agreement (Section 31(3)). The Arbitrator ought to have ascertained the total value of the machinery. Any reasonable person dealing with a claim on account of loss caused by the wrongful seizure of machinery or equipment will certainly enquire into the total value thereof. The hire charges may, at times furnish the basis for determining the compensation but such determination cannot normally exceed the price of the equipment as the loss caused cannot normally be more than the price of the equipment itself. In absence of such examination, the award can certainly be held to be perverse or based on non application of mind. In this view of the matter, either the parties have to be left free to have this issue re-determined which may further delay the matter or we may ourselves determine the claim based on the material on record. The latter course has been suggested by learned counsel.23. Learned counsel for the appellant has pointed out that as per invoice of purchase of the excavator, the price was Rs.27,34,134.75. In respect of the said machinery, claim of the Contractor is Rs.44,77,525/- only upto 31st October, 1989 out of the total claim of Rs.68,44,332/-. The claim could not be upheld beyond the price even if depreciation was not considered. On that basis total claim under Item No.18, on the date of the seizure could not exceed Rs.50 lakhs which appears to be the price of the machinery.24. Taking an overall view including the interest component upto the date of award (as the interest has been awarded only from the date of award) claim of the Contractor could be assessed at Rs. 1 crore 25 lakhs. We are conscious that we are not to substitute our opinion for that of the Arbitrator but since this part of the Award is outrightly perverse and not based on application of minds, we modify the award in respect of Item No.18 to Rs.1 crore 25 lakhs as on the date of the award instead of Rs.3 crores. Subject to this modification, the award is upheld in all other respects. Final calculation and adjustment may be made accordingly before the Executing Court.
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S.L. Ahmed & Others Vs. Union Of India & Others | pay and special pay. The Commission prescribed a scale of Rs. 225-308 for the post of Naik, but did not make any separate recommendation in respect of the posts of Radio Operators Grade- III (Naik). Inasmuch as before the revision of the pay scale the scale of a Naik and Radio Operator Grade-III (Naik) was the same, that is to say, Rs. 85-110, the revised pay scale for the post of Radio Operators Grade-III (Naik) was raised to the same level as that prescribed for the post of Naik, that is to say, Rs. 225-308, and in view of their special qualifications and the specialized nature of their duties Radio Operators Grade-III (Naik) were given a special pay of Rs. 30 also.9. The petitioners urge that posts in other departments of the Central Government, for which the minimum qualification was the Matriculation examination and an additional requirement of training, carried the pay scale of Rs. 260-430 and since that requirement was also the basis of appointments to the post of Radio Operators Grade-III (Naik) they should also be held entitled to that pay scale. Now the revised pay has been given with effect from January 1, 1973 and on that date the qualification in the case of a Naik was the Middle School Examination, and it was only with effect from January 24, 1975 that the qualification was raised to the Matriculation examination. As Naiks and Radio Operators Grade-III (Naik) had been uniformly treated at par in the matter of that basic qualification it is not open to the petitioners to base their claim with reference to a qualification which did not exist on January 1, 1973.10. In support of their claim to the pay scale Rs. 260-430, the petitioners have drawn our attention to the circumstance that the immediately next senior category, Radio Operators Grade-II, carried the revised scale Rs. 330-480 and, it is contended, the revised pay scale in the case of Radio Operators Grade-III should not be far below. It is not for this Court, we think, to examine how far below should be the revised pay scale of the Radio Operators Grade III. If the Government has prescribed a particular pay scale in respect of them, all that the Court can do is to merely pronounce on the validity of that fixation. In the event that the Court finds that the prescription is contrary to law it will strike it down and direct the Government to take a fresh decision in the matter. It is a very different case from one where this Court has sought to prescribe pay scales in appeals directly preferred from an award of the Labour Court dealing with such a matter. In the latter case, this Court in its appellate jurisdiction can be regarded as enjoying all the jurisdiction which the Labour Court enjoys. That is not so in the present case.11. We are satisfied that Radio Operators Grade-III (Naik) have to be considered substantially on the same basis as Naiks in the Central Reserve Police Force, and it is because of their special qualifications and of the specialised nature of their duties that they have been provided a special pay in addition. It may be mentioned that ever since 1975 Radio Operators Grade-III (Naik) are selected only from the rank of Constables on the General Duty Side. The revised pay scale of Radio Operators of the rank of Head Constable as well as Head Constables on General Duty is Rs. 260-350, with a special pay of Rs. 40 to Head Constables (Radio Operators). This post is the immediately next higher post above the rank of Naik, and it is apparent that there would be no justification of giving to the petitioners, who are junior in rank, the pay scale Rs. 260-430.12. The petitioners have also contended that they should be paid at par with comparable Government employees on the civil side. This claim is refuted by the respondents who point out that the petitioners are entitled to certain benefits not available to the others. Learned Counsel for the respondents has listed before us a number of such benefits. It is pointed out that the petitioner are entitled to casual leave for a period of twenty days as against casual leave for a period of twelve days for Government employees on the civil side, earned leave for a period of sixty days as against earned leave for a period of thirty three days for Government employees on the civil side, and rent free accommodation or house allowance at 10% of the salary in contrast to Government employees on the civil side who are liable to pay 10% of the salary if accommodation is provided.13. We are not satisfied that the petitioners are entitled to the pay scale Rs. 260 430.14. The second point requires us to consider the validity of the refixation of the pay of the petitioners when they were receiving Rs. 250 with a special pay of Rs. 30. According to the recommendations of the Third Pay Commission, the existing pay scale of a Government servant drawing basic pay upto Rs, 1800 per month was to be augmented by an amount representing five percent of the basic pay subject to a minimum of Rs. 15 and a maximum of Rs. 50. The Government of India Memorandum No. F. 67/II/13/74-IC dated May 17, 1974 directed that special pay was not to be included in the existing emoluments for the purpose of determining the accretion where in addition to the revised pay also. The revised pay actually paid to the petitioners initially was computed in error inasmuch as when fixing the pay in the revised scale the special pay was taken into account for the purpose of computing the accretion. It, therefore, became necessary to recompute the amount payable to the petitioners and to reduce it to the level now paid to them. It has not been shown to us that the basis adopted for refixation of the pay is invalid. | 0[ds]6. So far as the deduction is concerned, this Court has already directed by its order dated December 19, 1979 that the Government should restore to the petitioners the excess amount already recovered from them. Nevertheless, it will be necessary to examine the validity of the refixation of the salary now paid to the petitioners inasmuch as that question is relevant for the period commencing from the date from which salary has been actually paid on the refixedthe basis of the recommendations of the Third Pay Commission, the pay scales of all Central Government employees, including personnel in the para-military forces, were revised with effect from January 1, 1973. Under the original pay scales, Naik Radio Operators were placed on the scale Rs. 85-110 with a special pay of Rs. 30 in view of their special qualifications and the specialized nature of their duties. They were entitled to allowances calculated on the aggregate of their basic pay and special pay. The Commission prescribed a scale of Rs. 225-308 for the post of Naik, but did not make any separate recommendation in respect of the posts of Radio Operators Grade- III (Naik). Inasmuch as before the revision of the pay scale the scale of a Naik and Radio Operator Grade-III (Naik) was the same, that is to say, Rs. 85-110, the revised pay scale for the post of Radio Operators Grade-III (Naik) was raised to the same level as that prescribed for the post of Naik, that is to say, Rs. 225-308, and in view of their special qualifications and the specialized nature of their duties Radio Operators Grade-III (Naik) were given a special pay of Rs. 30 also.We are satisfied that Radio Operators Grade-III (Naik) have to be considered substantially on the same basis as Naiks in the Central Reserve Police Force, and it is because of their special qualifications and of the specialised nature of their duties that they have been provided a special pay in addition. It may be mentioned that ever since 1975 Radio Operators Grade-III (Naik) are selected only from the rank of Constables on the General Duty Side. The revised pay scale of Radio Operators of the rank of Head Constable as well as Head Constables on General Duty is Rs. 260-350, with a special pay of Rs. 40 to Head Constables (Radio Operators). This post is the immediately next higher post above the rank of Naik, and it is apparent that there would be no justification of giving to the petitioners, who are junior in rank, the pay scale Rs. 260-430.12. The petitioners have also contended that they should be paid at par with comparable Government employees on the civil side. This claim is refuted by the respondents who point out that the petitioners are entitled to certain benefits not available to the others. Learned Counsel for the respondents has listed before us a number of such benefits. It is pointed out that the petitioner are entitled to casual leave for a period of twenty days as against casual leave for a period of twelve days for Government employees on the civil side, earned leave for a period of sixty days as against earned leave for a period of thirty three days for Government employees on the civil side, and rent free accommodation or house allowance at 10% of the salary in contrast to Government employees on the civil side who are liable to pay 10% of the salary if accommodation is provided.13. We are not satisfied that the petitioners are entitled to the pay scale Rs. 260 430.14. The second point requires us to consider the validity of the refixation of the pay of the petitioners when they were receiving Rs. 250 with a special pay of Rs. 30. According to the recommendations of the Third Pay Commission, the existing pay scale of a Government servant drawing basic pay upto Rs, 1800 per month was to be augmented by an amount representing five percent of the basic pay subject to a minimum of Rs. 15 and a maximum of Rs. 50. The Government of India Memorandum No. F. 67/II/13/74-IC dated May 17, 1974 directed that special pay was not to be included in the existing emoluments for the purpose of determining the accretion where in addition to the revised pay also. The revised pay actually paid to the petitioners initially was computed in error inasmuch as when fixing the pay in the revised scale the special pay was taken into account for the purpose of computing the accretion. It, therefore, became necessary to recompute the amount payable to the petitioners and to reduce it to the level now paid to them. It has not been shown to us that the basis adopted for refixation of the pay is invalid. | 0 | 2,086 | 879 | ### Instruction:
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pay and special pay. The Commission prescribed a scale of Rs. 225-308 for the post of Naik, but did not make any separate recommendation in respect of the posts of Radio Operators Grade- III (Naik). Inasmuch as before the revision of the pay scale the scale of a Naik and Radio Operator Grade-III (Naik) was the same, that is to say, Rs. 85-110, the revised pay scale for the post of Radio Operators Grade-III (Naik) was raised to the same level as that prescribed for the post of Naik, that is to say, Rs. 225-308, and in view of their special qualifications and the specialized nature of their duties Radio Operators Grade-III (Naik) were given a special pay of Rs. 30 also.9. The petitioners urge that posts in other departments of the Central Government, for which the minimum qualification was the Matriculation examination and an additional requirement of training, carried the pay scale of Rs. 260-430 and since that requirement was also the basis of appointments to the post of Radio Operators Grade-III (Naik) they should also be held entitled to that pay scale. Now the revised pay has been given with effect from January 1, 1973 and on that date the qualification in the case of a Naik was the Middle School Examination, and it was only with effect from January 24, 1975 that the qualification was raised to the Matriculation examination. As Naiks and Radio Operators Grade-III (Naik) had been uniformly treated at par in the matter of that basic qualification it is not open to the petitioners to base their claim with reference to a qualification which did not exist on January 1, 1973.10. In support of their claim to the pay scale Rs. 260-430, the petitioners have drawn our attention to the circumstance that the immediately next senior category, Radio Operators Grade-II, carried the revised scale Rs. 330-480 and, it is contended, the revised pay scale in the case of Radio Operators Grade-III should not be far below. It is not for this Court, we think, to examine how far below should be the revised pay scale of the Radio Operators Grade III. If the Government has prescribed a particular pay scale in respect of them, all that the Court can do is to merely pronounce on the validity of that fixation. In the event that the Court finds that the prescription is contrary to law it will strike it down and direct the Government to take a fresh decision in the matter. It is a very different case from one where this Court has sought to prescribe pay scales in appeals directly preferred from an award of the Labour Court dealing with such a matter. In the latter case, this Court in its appellate jurisdiction can be regarded as enjoying all the jurisdiction which the Labour Court enjoys. That is not so in the present case.11. We are satisfied that Radio Operators Grade-III (Naik) have to be considered substantially on the same basis as Naiks in the Central Reserve Police Force, and it is because of their special qualifications and of the specialised nature of their duties that they have been provided a special pay in addition. It may be mentioned that ever since 1975 Radio Operators Grade-III (Naik) are selected only from the rank of Constables on the General Duty Side. The revised pay scale of Radio Operators of the rank of Head Constable as well as Head Constables on General Duty is Rs. 260-350, with a special pay of Rs. 40 to Head Constables (Radio Operators). This post is the immediately next higher post above the rank of Naik, and it is apparent that there would be no justification of giving to the petitioners, who are junior in rank, the pay scale Rs. 260-430.12. The petitioners have also contended that they should be paid at par with comparable Government employees on the civil side. This claim is refuted by the respondents who point out that the petitioners are entitled to certain benefits not available to the others. Learned Counsel for the respondents has listed before us a number of such benefits. It is pointed out that the petitioner are entitled to casual leave for a period of twenty days as against casual leave for a period of twelve days for Government employees on the civil side, earned leave for a period of sixty days as against earned leave for a period of thirty three days for Government employees on the civil side, and rent free accommodation or house allowance at 10% of the salary in contrast to Government employees on the civil side who are liable to pay 10% of the salary if accommodation is provided.13. We are not satisfied that the petitioners are entitled to the pay scale Rs. 260 430.14. The second point requires us to consider the validity of the refixation of the pay of the petitioners when they were receiving Rs. 250 with a special pay of Rs. 30. According to the recommendations of the Third Pay Commission, the existing pay scale of a Government servant drawing basic pay upto Rs, 1800 per month was to be augmented by an amount representing five percent of the basic pay subject to a minimum of Rs. 15 and a maximum of Rs. 50. The Government of India Memorandum No. F. 67/II/13/74-IC dated May 17, 1974 directed that special pay was not to be included in the existing emoluments for the purpose of determining the accretion where in addition to the revised pay also. The revised pay actually paid to the petitioners initially was computed in error inasmuch as when fixing the pay in the revised scale the special pay was taken into account for the purpose of computing the accretion. It, therefore, became necessary to recompute the amount payable to the petitioners and to reduce it to the level now paid to them. It has not been shown to us that the basis adopted for refixation of the pay is invalid.
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6. So far as the deduction is concerned, this Court has already directed by its order dated December 19, 1979 that the Government should restore to the petitioners the excess amount already recovered from them. Nevertheless, it will be necessary to examine the validity of the refixation of the salary now paid to the petitioners inasmuch as that question is relevant for the period commencing from the date from which salary has been actually paid on the refixedthe basis of the recommendations of the Third Pay Commission, the pay scales of all Central Government employees, including personnel in the para-military forces, were revised with effect from January 1, 1973. Under the original pay scales, Naik Radio Operators were placed on the scale Rs. 85-110 with a special pay of Rs. 30 in view of their special qualifications and the specialized nature of their duties. They were entitled to allowances calculated on the aggregate of their basic pay and special pay. The Commission prescribed a scale of Rs. 225-308 for the post of Naik, but did not make any separate recommendation in respect of the posts of Radio Operators Grade- III (Naik). Inasmuch as before the revision of the pay scale the scale of a Naik and Radio Operator Grade-III (Naik) was the same, that is to say, Rs. 85-110, the revised pay scale for the post of Radio Operators Grade-III (Naik) was raised to the same level as that prescribed for the post of Naik, that is to say, Rs. 225-308, and in view of their special qualifications and the specialized nature of their duties Radio Operators Grade-III (Naik) were given a special pay of Rs. 30 also.We are satisfied that Radio Operators Grade-III (Naik) have to be considered substantially on the same basis as Naiks in the Central Reserve Police Force, and it is because of their special qualifications and of the specialised nature of their duties that they have been provided a special pay in addition. It may be mentioned that ever since 1975 Radio Operators Grade-III (Naik) are selected only from the rank of Constables on the General Duty Side. The revised pay scale of Radio Operators of the rank of Head Constable as well as Head Constables on General Duty is Rs. 260-350, with a special pay of Rs. 40 to Head Constables (Radio Operators). This post is the immediately next higher post above the rank of Naik, and it is apparent that there would be no justification of giving to the petitioners, who are junior in rank, the pay scale Rs. 260-430.12. The petitioners have also contended that they should be paid at par with comparable Government employees on the civil side. This claim is refuted by the respondents who point out that the petitioners are entitled to certain benefits not available to the others. Learned Counsel for the respondents has listed before us a number of such benefits. It is pointed out that the petitioner are entitled to casual leave for a period of twenty days as against casual leave for a period of twelve days for Government employees on the civil side, earned leave for a period of sixty days as against earned leave for a period of thirty three days for Government employees on the civil side, and rent free accommodation or house allowance at 10% of the salary in contrast to Government employees on the civil side who are liable to pay 10% of the salary if accommodation is provided.13. We are not satisfied that the petitioners are entitled to the pay scale Rs. 260 430.14. The second point requires us to consider the validity of the refixation of the pay of the petitioners when they were receiving Rs. 250 with a special pay of Rs. 30. According to the recommendations of the Third Pay Commission, the existing pay scale of a Government servant drawing basic pay upto Rs, 1800 per month was to be augmented by an amount representing five percent of the basic pay subject to a minimum of Rs. 15 and a maximum of Rs. 50. The Government of India Memorandum No. F. 67/II/13/74-IC dated May 17, 1974 directed that special pay was not to be included in the existing emoluments for the purpose of determining the accretion where in addition to the revised pay also. The revised pay actually paid to the petitioners initially was computed in error inasmuch as when fixing the pay in the revised scale the special pay was taken into account for the purpose of computing the accretion. It, therefore, became necessary to recompute the amount payable to the petitioners and to reduce it to the level now paid to them. It has not been shown to us that the basis adopted for refixation of the pay is invalid.
|
State of Gujarat Vs. Reliance Industries Ltd | conferring general jurisdiction on High Court in addition to the subordinate courts within the State. 17. Moreover, there is no quarrel about the well-settled proposition of law that taxing statutes are to be interpreted literally See Commissioner of Income Tax-III v. Calcutta Knitwears, Ludhiana (2014) 6 SCC 444 , State of Madhya Pradesh v. Rakesh Kohli and Anr. (2012) 6 SCC 312 and V.V.S. Sugars v. Government of Andhra Pradesh and Ors. (1999) 4 SCC 192. 18. The aforesaid discussion leads us to the conclusion that it is a mega tax credit scheme which is provided under the VAT Act meant for all kinds of manufactured goods. The material in question, namely, furnace oil, natural gas and light diesel oil are admittedly subject to VAT under the VAT Act. The Legislature, however, has incorporated the provision, in the form of Section 11, to give tax credit in respect of such goods which are used as inputs/raw material for manufacturing other goods. Rationale behind the same is simple. When the finished product, after manufacture, is sold, VAT would be again payable thereon. This VAT is payable on the price at which such goods are sold, costing whereof is done keeping in view the expenses involved in the manufacture of such goods plus the profits which the manufacturer intends to earn. Insofar as costing is concerned, element of expenses incurred on raw material would be included. In this manner, when the final product is sold and the VAT paid, component of raw material would be included again. Keeping in view this objective, the Legislature has intended to give tax credit to some extent. However, how much tax credit is to be given and under what circumstances, is the domain of the Legislature and the courts are not to tinker with the same. This proposition is authoritatively determined by this Court in series of judgments. We may refer to the judgment in Godrej & Boyce Mfg. Co. Pvt. Ltd. and Ors. v. Commissioner of Sales Tax and Ors. (1992) 3 SCC 624 and the relevant extract which is relevant for our purposes is as follows: 9. Sri Bobde appearing for the Appellants reiterated the contentions urged before the High Court. He submitted that the deduction of one per cent, in effect, amounts to taxing the raw material purchased outside the State or to taxing the sale of finished goods effected outside the State of Maharashtra. We cannot agree. Indeed, the whole issue can be put in simpler terms. The Appellant (manufacturing dealer) purchases his raw material both within the State of Maharashtra and outside the State. Insofar as the purchases made outside the State of Maharashtra are concerned, the tax thereon is paid to other States. The State of Maharashtra gets the tax only in respect of purchases made by the Appellant within the State. So far as the sales tax leviable on the sale of the goods manufactured by the Appellant is concerned, the State of Maharashtra can levy and collect such tax only in respect of sales effected within the State of Maharashtra. It cannot levy or collect tax in respect of goods which are despatched by the Appellant to his branches and agents outside the State of Maharashtra and sold there. In law (apart from Rules 41 and 41-A) the Appellant has no legal right to claim set-off of the purchase tax paid by him on his purchases within the State from out of the sales tax payable by him on the sale of the goods manufactured by him. It is only by virtue of the said Rules -- which, as stated above, are conceived mainly in the interest of public -- that he is entitled to such set-off. It is really a concession and an indulgence. More particularly, where the manufactured goods are not sold within the State of Maharashtra but are despatched to out-State branches and agents and sold there, no sales tax can be or is levied by the State of Maharashtra. The State of Maharashtra gets nothing in respect of such sales effected outside the State. In respect of such sales, the rule-making authority could well have denied the benefit of set-off. But it chose to be generous and has extended the said benefit to such out-State sales as well, subject, however to deduction of one per cent of the sale price of such goods sent out of the State and sold there. We fail to understand how a valid grievance can be made in respect of such deduction when the very extension of the benefit of set-off is itself a boon or a concession. It was open to the rule-making authority to provide for a small abridgement or curtailment while extending a concession. Viewed from this angle, the argument that providing for such deduction amounts to levy of tax either on purchases of raw material effected outside the State or on sale of manufactured goods effected outside the State of Maharashtra appears to be beside the point and is unacceptable. So is the argument about apportioning the sale-price with reference to the proportion in which raw material was purchased within and outside the State. To the same effect are the judgments in the case of Hotel Balaji and Ors. v. State of Andhra Pradesh and Ors. (1993)Supp 4 SCC 536 and Jayam and Company v. Assistant Commissioner and Anr. (2015) 15 SCC 125. 19. The upshot of the aforesaid discussion would be to hold that reduction of 4% would be applied whenever a case gets covered by Sub-clause (ii) and again when Sub-clause (iii) is attracted. 20. This, however, would be subject to one limitation. In those cases where VAT paid on such raw material is 4%, as in the case of furnace oil, reduction cannot be more than that. After all, Section 11 deals with giving credit in respect of tax that is paid. Therefore, if some reduction is to be made from the said credit, it cannot be more than the credit given. | 1[ds]3. A birds eye view of the relevant portion of the aforesaid provision, which is the subject matter of these appeals, reveals that the tax credit which is admissible to the purchasing dealer is subject to provisions of Sub-section (2) of Section 12. Sub-section (3)(b), with which we are primarily concerned, provides that if the goods are falling in the categories mentioned in Sub-clauses (i), (ii) and (iii), the tax credit is to be reduced by the amount of tax calculated at the rate of 4% on the taxable turnover of purchases within the State. As noted above, the raw material/inputs used in the instant goods are fuels. Sub-clause (ii) includes such goods in case the taxable goods are dispatched outside the State in the course of branch transfer. As already mentioned above, after the final product is produced, the Assessee transfers these goods to its various branch offices, many of which are located outside the State and, therefore, those goods which are so transferred would be covered by this Sub-clause and in respect of such goods which are transferred outside the State and are taxable under the VAT Act, the tax credit is to be reduced by 4%. Since the raw material in the instant goods is in the nature of fuels used for the manufacture of goods, it gets covered by Sub-clause (iii) as well.In nutshell, Clause (a) of Sub-section (1) of Section 11 entitles the registered dealer to claim tax credit of the amount of VAT or entry tax which was paid. However, this tax credit is subject to Sub-sections (2) to (12) of Section 11.13. Clause (a) of Sub-Section 3 lays down certain conditions which have to be fulfilled in order to claim the tax credit. First condition is to give the tax credit in those cases where taxable goods are purchased. Thus, it is not admissible where the purchased goods are non-taxable inasmuch as in those cases no tax was paid and thus the question of giving credit would not arise. Second condition mentions that these goods are intended for specific purposes which are stipulated in Sub-clauses (1) to (7) of Clause (a). A perusal of these sub-clauses would indicate that contingencies stipulated in Sub-clauses (i) to (v) pertain to one category, i.e. where the goods are purchased as it is. On the other hand, Sub-clauses (vi) and (vii) would fall in other category. Sub-clause (vi) deals with a situation where the goods, after purchase, are used as raw material in the manufacture of taxable goods or in the packing of goods so manufactured. Sub-clause (vii) deals with those goods which are used as capital goods meant for use in the manufacture of taxable goods. Sub-clause (i) of Clause (b) is relatable to Sub-clause (iii) of Clause (a) as these deal with branch transfer of the goods. Likewise, Sub-clause (vi) read with Sub-clause (iii) of Clause (a) is concerned with Sub-clause (2) of Clause (b) as these deal with a situation where the goods so produced, in respect of which tax credit is given, are used as raw material in the manufacture or in the packing of goods and there is branch transfer of these goods as well outside the State. In such eventualities, tax credit is not fully given as it is reduced by 4%.14. It is clear that the material used even in the packing of goods is treated as raw material and, therefore, this definition is to be treated as term of Article This definition also clarifies that fuels used in the manufacture of goods would be treated as raw material with the only exception of those fuels which are used for the purpose of generation of electricity.15. Keeping in mind the aforesaid aspects, we advert to Section 11(3)(b).It is a non-obstante Clause as it starts with the word notwithstanding. Another aspect which is to be necessarily kept in mind is that it is the amount of tax credit which a dealer would be entitled to claim under Clause (a) that is to be reduced at the rate of 4% and this reduction is to be effected in three eventualities provided under Sub-clauses (i), (ii) and (iii). Insofar as Sub-clause (i) is concerned, it pertains to trading activity and there is no question of any overlap between Sub-clause (i) on the one hand and Sub-clauses (ii) and (iii) on the other. Further, insofar as Sub-clauses (i) and (ii) are concerned, same are disjunctive as the word or is inserted between these two clauses. However, when we come to Clauses (ii) and (iii), where there is a possibility of overlap (as it has happened in the instant case as well), there is no word or used between Clauses (ii) and (iii). Sub-clause (ii) finishes with the punctuation mark full stop and then Sub-clause (iii) starts. This depicts the intention of the Legislature, namely, reduction is not confined to one of the aforesaid two sub-clauses and it can occur under both these provisions. It is rightly pointed out by the Appellant State that these are event based sub-clauses and two events are totally different. Sub-clause (ii) is attracted in those cases where taxable goods are used as raw material (which may not necessarily be fuel but all raw materials are included) and also the other condition which is to be fulfilled is that these goods are dispatched outside the State in the course of branch transfer etc. Therefore, even if the taxable goods are used as raw material in the manufacture or in the packing of goods but they are consumed or sold within the State, Sub-clause (ii) would not apply. On the other hand, Sub-clause (iii) is referable to only fuels which are used for manufacture of goods. It is, thus, a totally separate category and the moment fuel is used in the manufacture of goods, this Sub-clause gets attracted and it would be immaterial whether the goods are sold within the State or outside the State.17. Moreover, there is no quarrel about the well-settled proposition of law that taxing statutes are to be interpreted literally See Commissioner of Income Tax-III v. Calcutta Knitwears, Ludhiana (2014) 6 SCC 444 , State of Madhya Pradesh v. Rakesh Kohli and Anr. (2012) 6 SCC 312 and V.V.S. Sugars v. Government of Andhra Pradesh and Ors. (1999) 4 SCC 192. 18. The aforesaid discussion leads us to the conclusion that it is a mega tax credit scheme which is provided under the VAT Act meant for all kinds of manufactured goods. The material in question, namely, furnace oil, natural gas and light diesel oil are admittedly subject to VAT under the VAT Act. The Legislature, however, has incorporated the provision, in the form of Section 11, to give tax credit in respect of such goods which are used as inputs/raw material for manufacturing other goods. Rationale behind the same is simple. When the finished product, after manufacture, is sold, VAT would be again payable thereon. This VAT is payable on the price at which such goods are sold, costing whereof is done keeping in view the expenses involved in the manufacture of such goods plus the profits which the manufacturer intends to earn. Insofar as costing is concerned, element of expenses incurred on raw material would be included. In this manner, when the final product is sold and the VAT paid, component of raw material would be included again. Keeping in view this objective, the Legislature has intended to give tax credit to some extent. However, how much tax credit is to be given and under what circumstances, is the domain of the Legislature and the courts are not to tinker with the same.19. The upshot of the aforesaid discussion would be to hold that reduction of 4% would be applied whenever a case gets covered by Sub-clause (ii) and again when Sub-clause (iii) is attracted.20. This, however, would be subject to one limitation. In those cases where VAT paid on such raw material is 4%, as in the case of furnace oil, reduction cannot be more than that. After all, Section 11 deals with giving credit in respect of tax that is paid. Therefore, if some reduction is to be made from the said credit, it cannot be more than the credit given.We may refer to the judgment in Godrej & Boyce Mfg. Co. Pvt. Ltd. and Ors. v. Commissioner of Sales Tax and Ors. (1992) 3 SCC 624 and the relevant extract which is relevant for our purposes is as follows:9. Sri Bobde appearing for the Appellants reiterated the contentions urged before the High Court. He submitted that the deduction of one per cent, in effect, amounts to taxing the raw material purchased outside the State or to taxing the sale of finished goods effected outside the State of Maharashtra. We cannot agree. Indeed, the whole issue can be put in simpler terms. The Appellant (manufacturing dealer) purchases his raw material both within the State of Maharashtra and outside the State. Insofar as the purchases made outside the State of Maharashtra are concerned, the tax thereon is paid to other States. The State of Maharashtra gets the tax only in respect of purchases made by the Appellant within the State. So far as the sales tax leviable on the sale of the goods manufactured by the Appellant is concerned, the State of Maharashtra can levy and collect such tax only in respect of sales effected within the State of Maharashtra. It cannot levy or collect tax in respect of goods which are despatched by the Appellant to his branches and agents outside the State of Maharashtra and sold there. In law (apart from Rules 41 and 41-A) the Appellant has no legal right to claim set-off of the purchase tax paid by him on his purchases within the State from out of the sales tax payable by him on the sale of the goods manufactured by him. It is only by virtue of the said Ruleswhich, as stated above, are conceived mainly in the interest of publicthat he is entitled to such set-off. It is really a concession and an indulgence. More particularly, where the manufactured goods are not sold within the State of Maharashtra but are despatched to out-State branches and agents and sold there, no sales tax can be or is levied by the State of Maharashtra. The State of Maharashtra gets nothing in respect of such sales effected outside the State. In respect of such sales, the rule-making authority could well have denied the benefit of set-off. But it chose to be generous and has extended the said benefit to such out-State sales as well, subject, however to deduction of one per cent of the sale price of such goods sent out of the State and sold there. We fail to understand how a valid grievance can be made in respect of such deduction when the very extension of the benefit of set-off is itself a boon or a concession. It was open to the rule-making authority to provide for a small abridgement or curtailment while extending a concession. Viewed from this angle, the argument that providing for such deduction amounts to levy of tax either on purchases of raw material effected outside the State or on sale of manufactured goods effected outside the State of Maharashtra appears to be beside the point and is unacceptable. So is the argument about apportioning the sale-price with reference to the proportion in which raw material was purchased within and outside the State.To the same effect are the judgments in the case of Hotel Balaji and Ors. v. State of Andhra Pradesh and Ors. (1993)Supp 4 SCC 536 and Jayam and Company v. Assistant Commissioner and Anr. (2015) 15 SCC 125. | 1 | 7,330 | 2,267 | ### Instruction:
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conferring general jurisdiction on High Court in addition to the subordinate courts within the State. 17. Moreover, there is no quarrel about the well-settled proposition of law that taxing statutes are to be interpreted literally See Commissioner of Income Tax-III v. Calcutta Knitwears, Ludhiana (2014) 6 SCC 444 , State of Madhya Pradesh v. Rakesh Kohli and Anr. (2012) 6 SCC 312 and V.V.S. Sugars v. Government of Andhra Pradesh and Ors. (1999) 4 SCC 192. 18. The aforesaid discussion leads us to the conclusion that it is a mega tax credit scheme which is provided under the VAT Act meant for all kinds of manufactured goods. The material in question, namely, furnace oil, natural gas and light diesel oil are admittedly subject to VAT under the VAT Act. The Legislature, however, has incorporated the provision, in the form of Section 11, to give tax credit in respect of such goods which are used as inputs/raw material for manufacturing other goods. Rationale behind the same is simple. When the finished product, after manufacture, is sold, VAT would be again payable thereon. This VAT is payable on the price at which such goods are sold, costing whereof is done keeping in view the expenses involved in the manufacture of such goods plus the profits which the manufacturer intends to earn. Insofar as costing is concerned, element of expenses incurred on raw material would be included. In this manner, when the final product is sold and the VAT paid, component of raw material would be included again. Keeping in view this objective, the Legislature has intended to give tax credit to some extent. However, how much tax credit is to be given and under what circumstances, is the domain of the Legislature and the courts are not to tinker with the same. This proposition is authoritatively determined by this Court in series of judgments. We may refer to the judgment in Godrej & Boyce Mfg. Co. Pvt. Ltd. and Ors. v. Commissioner of Sales Tax and Ors. (1992) 3 SCC 624 and the relevant extract which is relevant for our purposes is as follows: 9. Sri Bobde appearing for the Appellants reiterated the contentions urged before the High Court. He submitted that the deduction of one per cent, in effect, amounts to taxing the raw material purchased outside the State or to taxing the sale of finished goods effected outside the State of Maharashtra. We cannot agree. Indeed, the whole issue can be put in simpler terms. The Appellant (manufacturing dealer) purchases his raw material both within the State of Maharashtra and outside the State. Insofar as the purchases made outside the State of Maharashtra are concerned, the tax thereon is paid to other States. The State of Maharashtra gets the tax only in respect of purchases made by the Appellant within the State. So far as the sales tax leviable on the sale of the goods manufactured by the Appellant is concerned, the State of Maharashtra can levy and collect such tax only in respect of sales effected within the State of Maharashtra. It cannot levy or collect tax in respect of goods which are despatched by the Appellant to his branches and agents outside the State of Maharashtra and sold there. In law (apart from Rules 41 and 41-A) the Appellant has no legal right to claim set-off of the purchase tax paid by him on his purchases within the State from out of the sales tax payable by him on the sale of the goods manufactured by him. It is only by virtue of the said Rules -- which, as stated above, are conceived mainly in the interest of public -- that he is entitled to such set-off. It is really a concession and an indulgence. More particularly, where the manufactured goods are not sold within the State of Maharashtra but are despatched to out-State branches and agents and sold there, no sales tax can be or is levied by the State of Maharashtra. The State of Maharashtra gets nothing in respect of such sales effected outside the State. In respect of such sales, the rule-making authority could well have denied the benefit of set-off. But it chose to be generous and has extended the said benefit to such out-State sales as well, subject, however to deduction of one per cent of the sale price of such goods sent out of the State and sold there. We fail to understand how a valid grievance can be made in respect of such deduction when the very extension of the benefit of set-off is itself a boon or a concession. It was open to the rule-making authority to provide for a small abridgement or curtailment while extending a concession. Viewed from this angle, the argument that providing for such deduction amounts to levy of tax either on purchases of raw material effected outside the State or on sale of manufactured goods effected outside the State of Maharashtra appears to be beside the point and is unacceptable. So is the argument about apportioning the sale-price with reference to the proportion in which raw material was purchased within and outside the State. To the same effect are the judgments in the case of Hotel Balaji and Ors. v. State of Andhra Pradesh and Ors. (1993)Supp 4 SCC 536 and Jayam and Company v. Assistant Commissioner and Anr. (2015) 15 SCC 125. 19. The upshot of the aforesaid discussion would be to hold that reduction of 4% would be applied whenever a case gets covered by Sub-clause (ii) and again when Sub-clause (iii) is attracted. 20. This, however, would be subject to one limitation. In those cases where VAT paid on such raw material is 4%, as in the case of furnace oil, reduction cannot be more than that. After all, Section 11 deals with giving credit in respect of tax that is paid. Therefore, if some reduction is to be made from the said credit, it cannot be more than the credit given.
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totally separate category and the moment fuel is used in the manufacture of goods, this Sub-clause gets attracted and it would be immaterial whether the goods are sold within the State or outside the State.17. Moreover, there is no quarrel about the well-settled proposition of law that taxing statutes are to be interpreted literally See Commissioner of Income Tax-III v. Calcutta Knitwears, Ludhiana (2014) 6 SCC 444 , State of Madhya Pradesh v. Rakesh Kohli and Anr. (2012) 6 SCC 312 and V.V.S. Sugars v. Government of Andhra Pradesh and Ors. (1999) 4 SCC 192. 18. The aforesaid discussion leads us to the conclusion that it is a mega tax credit scheme which is provided under the VAT Act meant for all kinds of manufactured goods. The material in question, namely, furnace oil, natural gas and light diesel oil are admittedly subject to VAT under the VAT Act. The Legislature, however, has incorporated the provision, in the form of Section 11, to give tax credit in respect of such goods which are used as inputs/raw material for manufacturing other goods. Rationale behind the same is simple. When the finished product, after manufacture, is sold, VAT would be again payable thereon. This VAT is payable on the price at which such goods are sold, costing whereof is done keeping in view the expenses involved in the manufacture of such goods plus the profits which the manufacturer intends to earn. Insofar as costing is concerned, element of expenses incurred on raw material would be included. In this manner, when the final product is sold and the VAT paid, component of raw material would be included again. Keeping in view this objective, the Legislature has intended to give tax credit to some extent. However, how much tax credit is to be given and under what circumstances, is the domain of the Legislature and the courts are not to tinker with the same.19. The upshot of the aforesaid discussion would be to hold that reduction of 4% would be applied whenever a case gets covered by Sub-clause (ii) and again when Sub-clause (iii) is attracted.20. This, however, would be subject to one limitation. In those cases where VAT paid on such raw material is 4%, as in the case of furnace oil, reduction cannot be more than that. After all, Section 11 deals with giving credit in respect of tax that is paid. Therefore, if some reduction is to be made from the said credit, it cannot be more than the credit given.We may refer to the judgment in Godrej & Boyce Mfg. Co. Pvt. Ltd. and Ors. v. Commissioner of Sales Tax and Ors. (1992) 3 SCC 624 and the relevant extract which is relevant for our purposes is as follows:9. Sri Bobde appearing for the Appellants reiterated the contentions urged before the High Court. He submitted that the deduction of one per cent, in effect, amounts to taxing the raw material purchased outside the State or to taxing the sale of finished goods effected outside the State of Maharashtra. We cannot agree. Indeed, the whole issue can be put in simpler terms. The Appellant (manufacturing dealer) purchases his raw material both within the State of Maharashtra and outside the State. Insofar as the purchases made outside the State of Maharashtra are concerned, the tax thereon is paid to other States. The State of Maharashtra gets the tax only in respect of purchases made by the Appellant within the State. So far as the sales tax leviable on the sale of the goods manufactured by the Appellant is concerned, the State of Maharashtra can levy and collect such tax only in respect of sales effected within the State of Maharashtra. It cannot levy or collect tax in respect of goods which are despatched by the Appellant to his branches and agents outside the State of Maharashtra and sold there. In law (apart from Rules 41 and 41-A) the Appellant has no legal right to claim set-off of the purchase tax paid by him on his purchases within the State from out of the sales tax payable by him on the sale of the goods manufactured by him. It is only by virtue of the said Ruleswhich, as stated above, are conceived mainly in the interest of publicthat he is entitled to such set-off. It is really a concession and an indulgence. More particularly, where the manufactured goods are not sold within the State of Maharashtra but are despatched to out-State branches and agents and sold there, no sales tax can be or is levied by the State of Maharashtra. The State of Maharashtra gets nothing in respect of such sales effected outside the State. In respect of such sales, the rule-making authority could well have denied the benefit of set-off. But it chose to be generous and has extended the said benefit to such out-State sales as well, subject, however to deduction of one per cent of the sale price of such goods sent out of the State and sold there. We fail to understand how a valid grievance can be made in respect of such deduction when the very extension of the benefit of set-off is itself a boon or a concession. It was open to the rule-making authority to provide for a small abridgement or curtailment while extending a concession. Viewed from this angle, the argument that providing for such deduction amounts to levy of tax either on purchases of raw material effected outside the State or on sale of manufactured goods effected outside the State of Maharashtra appears to be beside the point and is unacceptable. So is the argument about apportioning the sale-price with reference to the proportion in which raw material was purchased within and outside the State.To the same effect are the judgments in the case of Hotel Balaji and Ors. v. State of Andhra Pradesh and Ors. (1993)Supp 4 SCC 536 and Jayam and Company v. Assistant Commissioner and Anr. (2015) 15 SCC 125.
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Bharatiya Kamgar Sena Vs. Otis Elevator Employees Union & Others | of a factory. It is difficult to hold that the field workers who are employed in guiding, supervising and controlling the growth and supply of sugarcane to be used in the factory are employed either in the precincts of the factory r in the premises of the factory; and if these workers are not employed in a factory, the provisions of the Factories Act, 1948, do not apply to them and they evidently fall within the definition of Commercial Establishment.6. The High Court was of the view that the Supervisors and Kamdars connected with the subject of manufacturing process, namely sugarcane, were workers within the meaning of the Factories Act and accordingly they were excluded from the definition of Commercial Establishment under the Act. However, even if the Supervisors and Kamdars were employed "in any other kind of work connected with the subject of manufacturing process" unless they were employed in the factory, the provisions of the Factories Act do not apply to them, there is no dispute that they are employees of a Commercial Establishment within the meaning of the Act."Mr. Bapat fairly conceded that the judgment does not cover the case before us. He, however, submitted that the observations therein would apply with equal force to the provisions of the MRTU & PULP Act.The definition of a worker in the Factories Act, 1948, is different from the definition of an employee which falls for consideration before us. Section 2(l) of the Factories Act defines the nature of work and section 2(m) defines a factory. The Supreme Court expressly held that it is "the combined operation of these definitions" that must be considered. It is upon a combined operation of these definitions that the Supreme Court came to the conclusion that the provisions of the Factories Act are intended to benefit only workers employed in a factory i.e. on the precincts or premises of a factory. It is also not possible to apply the definition under the Factories Act to the MRTU & PULP Act for, as noted by the Supreme Court itself, the diverse provisions of the Factories Act are intended only to benefit workers employed in the factory i.e. precincts or premises of a factory.The provisions of the MRTU & PULP Act, however, do not indicate that they apply only to persons working inside or within the undertaking. The definition of undertaking in section 3(15) of the MRTU & PULP Act is entirely different from the definition of a factory in section 2(m) of the Factories Act.28. Mr. Bapat then contended that section 12 and regulation 85 establish that field workers cannot be said to be employed in any undertaking. Section 12 provides that a notice of an application from a union for recognition under section 11 is to be displayed on the notice board of the undertaking. The employees concerned are also entitled to show cause as to why the recognition should not be granted to the applicant-union. Regulation 85 also requires the employer whose employee-union has applied for recognition to display on the notice board at a conspicuous place of the premises of the undertaking, such an notice. He submitted that it would be impossible for the field workers to see the notice if they do not attend the premises of the undertaking itself. This he submitted supports his contention.29. Firstly, it is not necessary that a field worker would not ever attend the undertaking. Secondly, it is always possible for a field worker to come to know of the same through others. Thirdly, in any event, this would at the highest be a situation which is for the legislature to take care of. The provisions do not militate against our interpretation of the provisions of the Act.30. The Western Region office dealt with the entire Western region, which included the whole of Maharashtra and parts of Gujarat and Madhya Pradesh. There was no separate office for the Mumbai region. However, an overwhelming majority workers are at sites in Mumbai. The impugned order grants recognition only in respect of the field workers in Mumbai city. The first respondent has not challenged this part of the order.31. Mr. Bapat however, submitted that the first respondent made the application for recognition in respect of the entire Western Region Office. The Western Region Office comprises of employees, not merely in Maharashtra, but in parts of Gujarat and Madhya Pradesh as well. The Industrial Court has granted recognition only insofar as it concerns the employees in the city of Mumbai. According to him, the application having been for the entire undertaking, it was not open to the Industrial Court to sanction only a part thereof.32. The first respondent-union has not challenged this restriction. Mr. Bapat, in fact, rightly agreed that if it is held that field workers are covered by the provisions of Chapter III, then even field workers connected to the said undertaking, though deployed in other States, ought also to be considered, as the recognition is qua the undertaking.The error if any in the order then prejudices not the petitioner, but the first respondent. In any event, an overwhelming majority of the first respondents members are from Mumbai itself. The first respondent cannot then be prejudiced further.33. The inclusion of the sales promotion employees in the definition of employee in section 3(5) is of no assistance to the petitioner. Nor is the use of the term "means" in section 3(5) of any assistance to the petitioner. Section 5(e) provides that employee means an employee as also defined in section 3(13) of the Bombay Industrial Relations Act and section 2(s) of the Industrial Disputes Act. The Act does not contain any bar against field workers being members of a union which is entitled to seek recognition under section 11. Section 2(s) of the Industrial Disputes Act, we have already seen, includes employees working outside the premises.34. In that view of the matter, field workers ought not to be excluded from the ambit of Chapter III of the Act. | 0[ds]The finding of the Industrial Court that the field workers were attached to and were under the supervision and control of the Western Region must be sustained. The findings do not warrant any interference. The Industrial Court has answered this issue in the affirmative after considering the evidence and the material on record. We see no reason to take a different view.9. The first respondent claimed that 272 workers of the Western Region Office were its members at the relevant time. A report was also prepared by the Investigating Officer of the Industrial Court. Assuming that the field workers are to be considered, four issues of fact are established viz. (i) There were more than 50 employees employed in the undertaking. (ii) The first respondents membership exceeded 30% of the employees in the undertaking. In fact, it was over 50%. (iii) The first respondents membership is larger than the membership of the petitioners. (iv) The 272 workers listed in the application for recognition were the first respondents members is not disputed. If however, the field workers are not to be considered, the first respondents application would not be maintainable as in view of section 10, Chapter III would not be applicable as there were less than 50 employees employed in the undertaking. Admittedly without the field workers, there were less than 50 employees employed in the undertaking.Considering the nature of the activities, especially of the field workers, it is obvious that they do not attend the Western Region office daily. The nature of their work requires their presence at the relevant site where the companys activities are actually being carried out. They are spread over the city at the various sites. It has come on record that the company also has four depots located at Colaba, Breach Candy, Andheri and Kandivali. They are looked after by Assistant Managers. About 5 to 6 persons worked under each of these Managers who are posted at particular depots. The field workers reported to these persons and also collected material from them as well as from the other stores. The workers are also controlled by the Model Standing Orders as well as the Industrial Employment Of Standing Orders Act. The Model Standing Orders are applicable to establishments where 50 or more workers are working. The Industrial Court, therefore, justifiably considered this to be a factor in favour of the first respondents contention that the said undertaking had 50 or more workers. This was, however, not the only basis on which the Industrial Court came to the conclusion that the said undertaking had 50 or more workers. The conclusion was also arrived at for various other reasons which are as follows.12. The evidence of the witnesses, including the companys officers, establish certain crucial factors which establish that the field workers concerned were supervised, controlled by and were otherwise attached to the undertaking. The said field workers were appointed by the Western Region Office. Their pay slips were issued from the Western Region Office. Disciplinary action was also taken against these workers by the Western Region Office. The Western Region Office was responsible for preparing the details relating to the salaries of the said field workers. Instructions for the change in location of the field workers were given by the Western Region Office. Thus, the Western Region Office looked after, controlled and directed the appointment, transfers, payment of wages, disciplinary action and the leave record in respect of these field workers.The depots were not separate undertakings. As the sites were at various locations at a considerable distance from each other and from the Western Region Office, it is understandable that the workers assembled at the depots and collected the material from the depots and other stores. It is also understandable in these circumstances that they did not report to the Western Region Office daily. In these circumstances, it would make no difference even if the wages were handed over to them at convenient locations other than at the Western Region Office itself.13. Theof one of the petitioners witnesses is important and instructive. The petitioners witness admitted inion used to correspond with the company at the Western Region Office. He further admitted that all the activities of the company were carried out at the Western Region Office. Even the charter of demands and grievances of the employees were addressed to and dealt with at the Western Region Office. Theitself signed agreements at the address of the Western Region Office. He also admitted that the computation of wages, deduction from the salary and the maintenance of records with regard to the salary was maintained at the Western Region Office. Leave applications of the employees used to be sent to the Western Region Office. The leave records were maintained at the Western Region Office. He further admitted that disciplinary action was taken at and controlled from the Western Region Office. Show cause notices were issued from there. Letters of promotions and transfers were also issued from the Western Region Office. The time ticket record used to be maintained at the Western Region Office. It is on the basis thereof that the salary used to be computed.Mr. Bapat submitted that a large part of the impugned order is nothing, but a reproduction of the earlier order which had been set aside by the Division Bench with a direction to pass a fresh order. He submitted that the impugned order was passed without adverting to the relevant evidence. He, therefore, submitted that we ought to set aside the order and remand the matter once again to the Industrial Court.Even assuming that the submission is well founded, we see no purpose in remanding the matter. It has already been remanded once. Remanding it again would cause unnecessary inconvenience and expense to both the parties. We, therefore, allowed Mr. Bapat to address us on the facts as well.15. The Industrial Court was therefore, justified in concluding that the said field workers were under the supervision and control of the Western Region Office. The Industrial Court cannot be faulted for having rejected the petitioners contention that these workers were not attached to the depots as contended by the petitioner. We are, therefore, entirely in agreement with the Industrial Court that the said field workers were attached to, controlled and supervised entirely by the Western Region Office i.e. the undertaking in respect whereof the recognition has been granted to the first respondent.We are unable to agree with Mr. Bapats contention that field workers cannot be said to be employed in the undertaking or in the precincts thereof. As the short title itself suggests, the Act is, interalia, for the recognition of trade unions. The preamble opens by saying that it is an Act to provide for recognition of trade unions. It also states the purpose for which the recognition is granted to the trade union. It is to facilitate collective bargaining for certain undertakings, to state their rights and obligations, to confer certain powers on unrecognized unions, to define and provide for the prevention of certain unfair labour practices, to prohibit and declare certain rights and lockouts as illegal strikes and lockouts and to constitute courts for carrying out the purposes of according recognition to trade unions and for enforcing the provisions relating to unfair practices and to provide for matters connected therewith. It is necessary to emphasize the fact that the main purpose of the Act is the recognition of Trade Unions and to regulate the rights and obligations of a recognized union and its members.As rightly submitted by Mr. Singhvi, the learned counsel appearing on behalf of the respondent No.1, the Act does not in so many words exclude from its ambit, employees such as field workers who are not present and do not work physically in the premises of the undertaking concerned or within the precincts thereof. Mr. Bapat has not invited our attention to any such provision either. He, however, submits that this is the effect of the words "employees employed in any undertaking". There is no reason why the legislature would have intended excluding from the ambit of the MRTUPULP Act, field workers. There is no reason why field workers would be excluded from the benefit of the Act. Section 3(5) of the MRTUPULP Act, which defines the term "employee" does not exclude from its purview, field workers. The plain language does not exclude them. There is nothing in the section that persuades us to take the view that field workers are impliedly excluded therefrom.As also rightly submitted by Mr. Singhvi, the preposition "in" is elastic and can mean both inside a place or in regard thereto or with respect thereto. Considering the provisions of the Act and the Legislative intent behind it, we are of the view that the preposition "in" in section 11 and in particular in the words "employees employed in any undertaking" refers to employees actually physically present and working in the premises of the undertaking as well as employees working outside the premises but whose work relates to, is connected with and is in relation to the work of the undertaking and such employees are connected to the undertaking. Considering the purpose of the Act which is,to provide for the recognition of a trade union for facilitating collective bargaining for certain undertakings and to regulate the rights and obligations of the unions, the members of the union and the employer, the broader view proposed by Mr. Singhvi commends itself to us. The Act is a welfare legislation. The purpose of the Act would be better served by including, rather than excluding, the employees from the purview thereof.The advantages of including them are obvious. The provisions of the Act have not been challenged. The legislature obviously thought it in the interest of the employers and the employees to have only one recognized union for the purpose of the Act. If we were to accept Mr. Bapats submission, the purpose of the legislation would be defeated. It would lead to several unions operating in respect of the same undertaking. Mr. Bapat has not indicated any advantage with the existence of several unions. We see no advantage in excluding from the purview of the Act, field workers. No reason has been indicated by Mr. Bapat. He merely stated that the Act does not include within its ambit, such employees. There is no reason then why field workers ought to be denied the benefit of the Act. There is no reason why they ought to be denied benefits as members of the recognized union, including their ability for collective bargaining. Indeed their bargaining power would be enhanced if they were part of the recognized union. It is reasonable to presume that the recognized union would be in a better position while bargaining on behalf of the employees. This is for the obvious reason that under section 12(3), it is the union with the largest number of members that is entitled to recognition provided it fulfills all the other requirements of the Act.24. Section 3(15), which defines the term "undertaking", really provides that any concern in industry shall be one undertaking for the purpose of Chapter III and entitles the Government to notify a group of concerns owned by the same employer in any industry to be one undertaking for the purpose of that chapter. We do not see how section 3(15) even impliedly excludes field workers from the ambit of Chapter III.25. Mr. Bapats interpretation of the provisions of the Act, if accepted, would cause difficulties and uncertainties in determining the employees who could be said to be employed or working in the undertaking. There are some employees, such as field workers, who would seldom have to visit the premises of the undertaking itself. There are some employees who would have to visit the undertaking more often, but not at all times. They may not even have to visit the undertaking for a substantial part of their working hours and days. For instance, drivers and attendants of buses meant to transport the employees from the undertaking to their respective destinations outside the premises would spend a part of the day outside the premises and a part of the day within the premises. Similarly, drivers of cars of the employees of the undertaking would also spend varying amounts of time within the premises and outside the premises. Sales executives would also spend a part of their working hours within the premises and a part outside the premises. The number of hours spent by such employees within the premises would also vary. The amount of time spent in the premises would vary on account of innumerable factors. All these employees may well travel even outside the city regularly. Where does one draw the line The Act does not provide any guidelines to determine the same. The legislature, as we noted earlier, was obviously of the view that it is desirable to facilitate and encourage not merely the formation of unions, but the recognition of only one union in respect of an undertaking. The validity of this view is not under challenge. That being so, the interpretation of Mr. Bapat would run contrary to the purpose of the legislation.Mr. Singhvis reliance upon the judgment of the Supreme Court in J.K. Cotton SpinningWeaving Mills Co. v. Labour Appellate Tribunal of IndiaOrs. AIR 1964 SC 787 = 1963 II LLJ, 436, is well founded.While we are dealing with this point it is necessary to bear in mind that the bungalows are owned by the appellant and they are allotted to the officers as required by the terms and conditions of the officers employment. Since the bungalows are allotted to the officers, it is the duty of the appellant to look after the bungalows and take care of the gardens attached to them. If the terms and conditions of service require that the officers should be given bungalows, it is difficult to see why in the case of Malis who are employed by the appellant, are paid by it, and who work subject to its control and supervision and discharge the function of looking after the appellants property, it should be said that the work done by them has no relation with the industry carried on by the appellant. The employment is by the appellant, the conditions of service are determined by the appellant, the payment is substantially made by the appellant, the continuance of service depends upon the pleasure of the appellant, subject, of course, to the Standing Orders prescribed in that behalf, and the work assigned to the Malis is the work of looking after the properties which have been allotted to the officers of the appellant. Like the transport amenity provided by a factory to its employees, bungalows and gardens are also a kind of amenity supplied by the employer to his officers and the drivers who look after the buses and the Malis who look after the gardens must, therefore, be held to be engaged in operations which are incidentally connected with the main industry carried on by the employer. It is true that in matters of this kind it is not easy to draw a line, and it may also be conceded that in dealing with the question of incidental relationship with the main industrial operation, a limit has to be prescribed so as to exclude operations or activities whose relation with the main industrial activity may be remote, indirect and farfetched. We are not prepared to hold that the relation of the work carried on by the Malis in the present case can be characterised as remote, indirect orThat is why we think that the Labour Appellate Tribunal was right in coming to the conclusion that Malis are workmen under the Act.Bapat fairly conceded that the judgment does not cover the case before us. He, however, submitted that the observations therein would apply with equal force to the provisions of the MRTUPULP Act.The definition of a worker in the Factories Act, 1948, is different from the definition of an employee which falls for consideration before us. Section 2(l) of the Factories Act defines the nature of work and section 2(m) defines a factory. The Supreme Court expressly held that it is "the combined operation of these definitions" that must be considered. It is upon a combined operation of these definitions that the Supreme Court came to the conclusion that the provisions of the Factories Act are intended to benefit only workers employed in a factory i.e. on the precincts or premises of a factory. It is also not possible to apply the definition under the Factories Act to the MRTUPULP Act for, as noted by the Supreme Court itself, the diverse provisions of the Factories Act are intended only to benefit workers employed in the factory i.e. precincts or premises of a factory.The provisions of the MRTUPULP Act, however, do not indicate that they apply only to persons working inside or within the undertaking. The definition of undertaking in section 3(15) of the MRTUPULP Act is entirely different from the definition of a factory in section 2(m) of the Factories Act.28. Mr. Bapat then contended that section 12 and regulation 85 establish that field workers cannot be said to be employed in any undertaking. Section 12 provides that a notice of an application from a union for recognition under section 11 is to be displayed on the notice board of the undertaking. The employees concerned are also entitled to show cause as to why the recognition should not be granted to theRegulation 85 also requires the employer whosehas applied for recognition to display on the notice board at a conspicuous place of the premises of the undertaking, such an notice. He submitted that it would be impossible for the field workers to see the notice if they do not attend the premises of the undertaking itself. This he submitted supports his contention.29. Firstly, it is not necessary that a field worker would not ever attend the undertaking. Secondly, it is always possible for a field worker to come to know of the same through others. Thirdly, in any event, this would at the highest be a situation which is for the legislature to take care of. The provisions do not militate against our interpretation of the provisions of the Act.30. The Western Region office dealt with the entire Western region, which included the whole of Maharashtra and parts of Gujarat and Madhya Pradesh. There was no separate office for the Mumbai region. However, an overwhelming majority workers are at sites in Mumbai. The impugned order grants recognition only in respect of the field workers in Mumbai city. The first respondent has not challenged this part of the order.31. Mr. Bapat however, submitted that the first respondent made the application for recognition in respect of the entire Western Region Office. The Western Region Office comprises of employees, not merely in Maharashtra, but in parts of Gujarat and Madhya Pradesh as well. The Industrial Court has granted recognition only insofar as it concerns the employees in the city of Mumbai. According to him, the application having been for the entire undertaking, it was not open to the Industrial Court to sanction only a part thereof.32. The firsthas not challenged this restriction. Mr. Bapat, in fact, rightly agreed that if it is held that field workers are covered by the provisions of Chapter III, then even field workers connected to the said undertaking, though deployed in other States, ought also to be considered, as the recognition is qua the undertaking.The error if any in the order then prejudices not the petitioner, but the first respondent. In any event, an overwhelming majority of the first respondents members are from Mumbai itself. The first respondent cannot then be prejudiced further.33. The inclusion of the sales promotion employees in the definition of employee in section 3(5) is of no assistance to the petitioner. Nor is the use of the term "means" in section 3(5) of any assistance to the petitioner. Section 5(e) provides that employee means an employee as also defined in section 3(13) of the Bombay Industrial Relations Act and section 2(s) of the Industrial Disputes Act. The Act does not contain any bar against field workers being members of a union which is entitled to seek recognition under section 11. Section 2(s) of the Industrial Disputes Act, we have already seen, includes employees working outside the premises.34. In that view of the matter, field workers ought not to be excluded from the ambit of Chapter III of the Act. | 0 | 8,869 | 3,778 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
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of a factory. It is difficult to hold that the field workers who are employed in guiding, supervising and controlling the growth and supply of sugarcane to be used in the factory are employed either in the precincts of the factory r in the premises of the factory; and if these workers are not employed in a factory, the provisions of the Factories Act, 1948, do not apply to them and they evidently fall within the definition of Commercial Establishment.6. The High Court was of the view that the Supervisors and Kamdars connected with the subject of manufacturing process, namely sugarcane, were workers within the meaning of the Factories Act and accordingly they were excluded from the definition of Commercial Establishment under the Act. However, even if the Supervisors and Kamdars were employed "in any other kind of work connected with the subject of manufacturing process" unless they were employed in the factory, the provisions of the Factories Act do not apply to them, there is no dispute that they are employees of a Commercial Establishment within the meaning of the Act."Mr. Bapat fairly conceded that the judgment does not cover the case before us. He, however, submitted that the observations therein would apply with equal force to the provisions of the MRTU & PULP Act.The definition of a worker in the Factories Act, 1948, is different from the definition of an employee which falls for consideration before us. Section 2(l) of the Factories Act defines the nature of work and section 2(m) defines a factory. The Supreme Court expressly held that it is "the combined operation of these definitions" that must be considered. It is upon a combined operation of these definitions that the Supreme Court came to the conclusion that the provisions of the Factories Act are intended to benefit only workers employed in a factory i.e. on the precincts or premises of a factory. It is also not possible to apply the definition under the Factories Act to the MRTU & PULP Act for, as noted by the Supreme Court itself, the diverse provisions of the Factories Act are intended only to benefit workers employed in the factory i.e. precincts or premises of a factory.The provisions of the MRTU & PULP Act, however, do not indicate that they apply only to persons working inside or within the undertaking. The definition of undertaking in section 3(15) of the MRTU & PULP Act is entirely different from the definition of a factory in section 2(m) of the Factories Act.28. Mr. Bapat then contended that section 12 and regulation 85 establish that field workers cannot be said to be employed in any undertaking. Section 12 provides that a notice of an application from a union for recognition under section 11 is to be displayed on the notice board of the undertaking. The employees concerned are also entitled to show cause as to why the recognition should not be granted to the applicant-union. Regulation 85 also requires the employer whose employee-union has applied for recognition to display on the notice board at a conspicuous place of the premises of the undertaking, such an notice. He submitted that it would be impossible for the field workers to see the notice if they do not attend the premises of the undertaking itself. This he submitted supports his contention.29. Firstly, it is not necessary that a field worker would not ever attend the undertaking. Secondly, it is always possible for a field worker to come to know of the same through others. Thirdly, in any event, this would at the highest be a situation which is for the legislature to take care of. The provisions do not militate against our interpretation of the provisions of the Act.30. The Western Region office dealt with the entire Western region, which included the whole of Maharashtra and parts of Gujarat and Madhya Pradesh. There was no separate office for the Mumbai region. However, an overwhelming majority workers are at sites in Mumbai. The impugned order grants recognition only in respect of the field workers in Mumbai city. The first respondent has not challenged this part of the order.31. Mr. Bapat however, submitted that the first respondent made the application for recognition in respect of the entire Western Region Office. The Western Region Office comprises of employees, not merely in Maharashtra, but in parts of Gujarat and Madhya Pradesh as well. The Industrial Court has granted recognition only insofar as it concerns the employees in the city of Mumbai. According to him, the application having been for the entire undertaking, it was not open to the Industrial Court to sanction only a part thereof.32. The first respondent-union has not challenged this restriction. Mr. Bapat, in fact, rightly agreed that if it is held that field workers are covered by the provisions of Chapter III, then even field workers connected to the said undertaking, though deployed in other States, ought also to be considered, as the recognition is qua the undertaking.The error if any in the order then prejudices not the petitioner, but the first respondent. In any event, an overwhelming majority of the first respondents members are from Mumbai itself. The first respondent cannot then be prejudiced further.33. The inclusion of the sales promotion employees in the definition of employee in section 3(5) is of no assistance to the petitioner. Nor is the use of the term "means" in section 3(5) of any assistance to the petitioner. Section 5(e) provides that employee means an employee as also defined in section 3(13) of the Bombay Industrial Relations Act and section 2(s) of the Industrial Disputes Act. The Act does not contain any bar against field workers being members of a union which is entitled to seek recognition under section 11. Section 2(s) of the Industrial Disputes Act, we have already seen, includes employees working outside the premises.34. In that view of the matter, field workers ought not to be excluded from the ambit of Chapter III of the Act.
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is the work of looking after the properties which have been allotted to the officers of the appellant. Like the transport amenity provided by a factory to its employees, bungalows and gardens are also a kind of amenity supplied by the employer to his officers and the drivers who look after the buses and the Malis who look after the gardens must, therefore, be held to be engaged in operations which are incidentally connected with the main industry carried on by the employer. It is true that in matters of this kind it is not easy to draw a line, and it may also be conceded that in dealing with the question of incidental relationship with the main industrial operation, a limit has to be prescribed so as to exclude operations or activities whose relation with the main industrial activity may be remote, indirect and farfetched. We are not prepared to hold that the relation of the work carried on by the Malis in the present case can be characterised as remote, indirect orThat is why we think that the Labour Appellate Tribunal was right in coming to the conclusion that Malis are workmen under the Act.Bapat fairly conceded that the judgment does not cover the case before us. He, however, submitted that the observations therein would apply with equal force to the provisions of the MRTUPULP Act.The definition of a worker in the Factories Act, 1948, is different from the definition of an employee which falls for consideration before us. Section 2(l) of the Factories Act defines the nature of work and section 2(m) defines a factory. The Supreme Court expressly held that it is "the combined operation of these definitions" that must be considered. It is upon a combined operation of these definitions that the Supreme Court came to the conclusion that the provisions of the Factories Act are intended to benefit only workers employed in a factory i.e. on the precincts or premises of a factory. It is also not possible to apply the definition under the Factories Act to the MRTUPULP Act for, as noted by the Supreme Court itself, the diverse provisions of the Factories Act are intended only to benefit workers employed in the factory i.e. precincts or premises of a factory.The provisions of the MRTUPULP Act, however, do not indicate that they apply only to persons working inside or within the undertaking. The definition of undertaking in section 3(15) of the MRTUPULP Act is entirely different from the definition of a factory in section 2(m) of the Factories Act.28. Mr. Bapat then contended that section 12 and regulation 85 establish that field workers cannot be said to be employed in any undertaking. Section 12 provides that a notice of an application from a union for recognition under section 11 is to be displayed on the notice board of the undertaking. The employees concerned are also entitled to show cause as to why the recognition should not be granted to theRegulation 85 also requires the employer whosehas applied for recognition to display on the notice board at a conspicuous place of the premises of the undertaking, such an notice. He submitted that it would be impossible for the field workers to see the notice if they do not attend the premises of the undertaking itself. This he submitted supports his contention.29. Firstly, it is not necessary that a field worker would not ever attend the undertaking. Secondly, it is always possible for a field worker to come to know of the same through others. Thirdly, in any event, this would at the highest be a situation which is for the legislature to take care of. The provisions do not militate against our interpretation of the provisions of the Act.30. The Western Region office dealt with the entire Western region, which included the whole of Maharashtra and parts of Gujarat and Madhya Pradesh. There was no separate office for the Mumbai region. However, an overwhelming majority workers are at sites in Mumbai. The impugned order grants recognition only in respect of the field workers in Mumbai city. The first respondent has not challenged this part of the order.31. Mr. Bapat however, submitted that the first respondent made the application for recognition in respect of the entire Western Region Office. The Western Region Office comprises of employees, not merely in Maharashtra, but in parts of Gujarat and Madhya Pradesh as well. The Industrial Court has granted recognition only insofar as it concerns the employees in the city of Mumbai. According to him, the application having been for the entire undertaking, it was not open to the Industrial Court to sanction only a part thereof.32. The firsthas not challenged this restriction. Mr. Bapat, in fact, rightly agreed that if it is held that field workers are covered by the provisions of Chapter III, then even field workers connected to the said undertaking, though deployed in other States, ought also to be considered, as the recognition is qua the undertaking.The error if any in the order then prejudices not the petitioner, but the first respondent. In any event, an overwhelming majority of the first respondents members are from Mumbai itself. The first respondent cannot then be prejudiced further.33. The inclusion of the sales promotion employees in the definition of employee in section 3(5) is of no assistance to the petitioner. Nor is the use of the term "means" in section 3(5) of any assistance to the petitioner. Section 5(e) provides that employee means an employee as also defined in section 3(13) of the Bombay Industrial Relations Act and section 2(s) of the Industrial Disputes Act. The Act does not contain any bar against field workers being members of a union which is entitled to seek recognition under section 11. Section 2(s) of the Industrial Disputes Act, we have already seen, includes employees working outside the premises.34. In that view of the matter, field workers ought not to be excluded from the ambit of Chapter III of the Act.
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Ram Gopal Dwivedi and Ors Vs. Kanpur Electricity Supply Co. Ltd. through its General Manager | Electricity Supply Company Ltd. (for short KESC). The terms and conditions of the employees working with the Respondent are governed by the statutory Regulations framed by the Board in exercise of its powers Under Section 78 (c) of the Electricity (Supply) Act, 1948.4. The Appellants were engaged by the Respondent to work in their set up as trade Apprentices under the Apprentices Act, 1961. In terms of the agreement, they were to undergo training in the trade of Boiler Attendant/Cable Jointer. Their period of training was 3 years. It was to come to an end after the expiry of contract period.5. The Respondent accordingly terminated the services of the Appellant in C.A. No. 8125 of 2009 on 01.08.1989 and the Appellant in C.A. No. 8126 of 2009 on 13.07.1990. This gave rise to the dispute between the Appellants and the Respondent, which led to making of the industrial reference to the Labour Court, Kanpur to decide as to whether the termination of the Appellants from the services was legal or/and proper and, if so, what relief the Appellants are entitled to?6. Parties filed their statements and adduced evidence before the Labour Court. By awards dated 29.08.1996 and 28.02.1997, the Labour Court answered the reference in Appellants favour. It was held that, (i) the Appellants were not paid any retrenchment compensation before terminating their services; (ii) no inquiry was held; (iii) the Appellant having served with the Respondent for more than two years, they were entitled to the protection of labour laws. The Labour Court, therefore, set aside the termination order and directed reinstatement of the Appellants together with payment of 50% of back wages.7. The Respondent (employer), felt aggrieved of the awards, filed writ petitions before the High Court at Allahabad and questioned its legality and correctness. By impugned judgments, the High Court allowed the writ petitions and set aside the awards of the Labour Court. The High Court held that the case at hand are fully covered by the decision of this Court in U.P. State Electricity Board v. Shiv Mohan Singh and Anr. (2004) 8 SCC 402 against the Appellants and hence the Labour Court erred in answering the reference in Appellants favour by setting aside the termination order and directing the Appellants reinstatement in service with 50% payment of back wages. It was held that the reference should have been answered in Respondents favour by upholding the Appellants termination as legal and proper.8. The Appellants, felt aggrieved by the impugned judgments, have filed these appeals by special leave before this Court.9. Heard Mr. Satya Mitra Garg, learned Counsel for the Appellants and Dr, Rajeev Sharma, leaned Counsel for the Respondent.10. Having heard the learned Counsel for the parties and on perusal of the record of the case, we find no merit in these appeals.11. In our considered opinion, the High Court was fully justified in placing reliance on the decision rendered by this Court in the case of U.P. State Electricity Board (supra) for allowing the Respondents writ petitions and setting aside of the awards of the Labour Court. Indeed, the facts of this case and of U.P. State Electricity Boards case (supra) are almost identical.12. In fact, we find that in both the cases, the employees were working as Boiler Attendant/Cable Jointer in UPSEB and were appointed as Apprentices.13. This Court (Three Judge Bench) in the case of U.P. State Electricity Board (supra) examined the provisions of Apprentices Act, 1961 in the context of U.P. Industrial Disputes Act, 1947 and then applying the law laid down in the case set aside the award of the Labour Court and upheld the termination.14. This would be clear from the facts set out from the case of U.P. State Electricity Board (supra) in para 63 which reads as under:63. Respondent 1 Shiv Mohan Singh was appointed as an apprentice Boiler Attendant under the Apprentices Act, 1961 from 11-4-1985 to 10-4-1988 and underwent training of the U.P. State Electricity Board. His contract was drawn up but not registered with the Apprenticeship Adviser. He completed his three years training and a certificate to this effect was issued to him and he was directed to appear before the National Council and on passing thereof he was to be awarded a certificate of proficiency as a Boiler Attendant. From this fact it is apparent that he was appointed as an apprentice trainee in the designated trade of Boiler Attendant. After completion of his training his services were terminated on 10-4-1988. It is clear from this fact that he was a Boiler Attendant. He completed three years training and after end of the training he was relieved as per the terms and conditions of the appointment as an apprentice in designated trade of Boiler Attendant and therefore he cannot be declared to be a worker under the Act and he cannot claim the benefit of Section 25-F of the Industrial Disputes Act, 1947 or Under Section 6-N of the U.P. Industrial Disputes Act, 1947. In this light the award given by the Labour Court in Award Dispute No. 166 of 1991 dated 12-8-1993 and the order dated 26-9-2002 passed in WP No. 21560 of 1995 by the High Court cannot be sustained. Civil appeal is allowed. Both the orders of the High Court dated 26-9-2002 and the award of the Labour Court dated 12-8-1993 are set aside.15. As mentioned supra, the facts of both the cases appear identical. In this view of the matter, the High Court, in our view, was justified in placing reliance on the decision of this Court in U.P. State Electricity Board (supra) and rightly allowed the Respondents (employers) writ petitions and set aside the awards of the Labour Court. It is rather unfortunate that the Labour Court did not take note of the law laid down in U.P. State Electricity Boards case and wrongly set aside the termination orders. We, therefore, concur with the reasoning and the conclusion arrived at by the High Court and uphold the impugned judgment. | 0[ds]10. Having heard the learned Counsel for the parties and on perusal of the record of the case, we find no merit in these appeals11. In our considered opinion, the High Court was fully justified in placing reliance on the decision rendered by this Court in the case of U.P. State Electricity Board (supra) for allowing the Respondents writ petitions and setting aside of the awards of the Labour Court. Indeed, the facts of this case and of U.P. State Electricity Boards case (supra) are almost identical12. In fact, we find that in both the cases, the employees were working as Boiler Attendant/Cable Jointer in UPSEB and were appointed as Apprentices13. This Court (Three Judge Bench) in the case of U.P. State Electricity Board (supra) examined the provisions of Apprentices Act, 1961 in the context of U.P. Industrial Disputes Act, 1947 and then applying the law laid down in the case set aside the award of the Labour Court and upheld the termination14. This would be clear from the facts set out from the case of U.P. State Electricity Board (supra) in para 63 which reads as under:63. Respondent 1 Shiv Mohan Singh was appointed as an apprentice Boiler Attendant under the Apprentices Act, 1961 from 11-4-1985 to 10-4-1988 and underwent training of the U.P. State Electricity Board. His contract was drawn up but not registered with the Apprenticeship Adviser. He completed his three years training and a certificate to this effect was issued to him and he was directed to appear before the National Council and on passing thereof he was to be awarded a certificate of proficiency as a Boiler Attendant. From this fact it is apparent that he was appointed as an apprentice trainee in the designated trade of Boiler Attendant. After completion of his training his services were terminated on 10-4-1988. It is clear from this fact that he was a Boiler Attendant. He completed three years training and after end of the training he was relieved as per the terms and conditions of the appointment as an apprentice in designated trade of Boiler Attendant and therefore he cannot be declared to be a worker under the Act and he cannot claim the benefit of Section 25-F of the Industrial Disputes Act, 1947 or Under Section 6-N of the U.P. Industrial Disputes Act, 1947. In this light the award given by the Labour Court in Award Dispute No. 166 of 1991 dated 12-8-1993 and the order dated 26-9-2002 passed in WP No. 21560 of 1995 by the High Court cannot be sustained. Civil appeal is allowed. Both the orders of the High Court dated 26-9-2002 and the award of the Labour Court dated 12-8-1993 are set aside15. As mentioned supra, the facts of both the cases appear identical. In this view of the matter, the High Court, in our view, was justified in placing reliance on the decision of this Court in U.P. State Electricity Board (supra) and rightly allowed the Respondents (employers) writ petitions and set aside the awards of the Labour Court. It is rather unfortunate that the Labour Court did not take note of the law laid down in U.P. State Electricity Boards case and wrongly set aside the termination orders. We, therefore, concur with the reasoning and the conclusion arrived at by the High Court and uphold the impugned judgment. | 0 | 1,287 | 627 | ### Instruction:
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Electricity Supply Company Ltd. (for short KESC). The terms and conditions of the employees working with the Respondent are governed by the statutory Regulations framed by the Board in exercise of its powers Under Section 78 (c) of the Electricity (Supply) Act, 1948.4. The Appellants were engaged by the Respondent to work in their set up as trade Apprentices under the Apprentices Act, 1961. In terms of the agreement, they were to undergo training in the trade of Boiler Attendant/Cable Jointer. Their period of training was 3 years. It was to come to an end after the expiry of contract period.5. The Respondent accordingly terminated the services of the Appellant in C.A. No. 8125 of 2009 on 01.08.1989 and the Appellant in C.A. No. 8126 of 2009 on 13.07.1990. This gave rise to the dispute between the Appellants and the Respondent, which led to making of the industrial reference to the Labour Court, Kanpur to decide as to whether the termination of the Appellants from the services was legal or/and proper and, if so, what relief the Appellants are entitled to?6. Parties filed their statements and adduced evidence before the Labour Court. By awards dated 29.08.1996 and 28.02.1997, the Labour Court answered the reference in Appellants favour. It was held that, (i) the Appellants were not paid any retrenchment compensation before terminating their services; (ii) no inquiry was held; (iii) the Appellant having served with the Respondent for more than two years, they were entitled to the protection of labour laws. The Labour Court, therefore, set aside the termination order and directed reinstatement of the Appellants together with payment of 50% of back wages.7. The Respondent (employer), felt aggrieved of the awards, filed writ petitions before the High Court at Allahabad and questioned its legality and correctness. By impugned judgments, the High Court allowed the writ petitions and set aside the awards of the Labour Court. The High Court held that the case at hand are fully covered by the decision of this Court in U.P. State Electricity Board v. Shiv Mohan Singh and Anr. (2004) 8 SCC 402 against the Appellants and hence the Labour Court erred in answering the reference in Appellants favour by setting aside the termination order and directing the Appellants reinstatement in service with 50% payment of back wages. It was held that the reference should have been answered in Respondents favour by upholding the Appellants termination as legal and proper.8. The Appellants, felt aggrieved by the impugned judgments, have filed these appeals by special leave before this Court.9. Heard Mr. Satya Mitra Garg, learned Counsel for the Appellants and Dr, Rajeev Sharma, leaned Counsel for the Respondent.10. Having heard the learned Counsel for the parties and on perusal of the record of the case, we find no merit in these appeals.11. In our considered opinion, the High Court was fully justified in placing reliance on the decision rendered by this Court in the case of U.P. State Electricity Board (supra) for allowing the Respondents writ petitions and setting aside of the awards of the Labour Court. Indeed, the facts of this case and of U.P. State Electricity Boards case (supra) are almost identical.12. In fact, we find that in both the cases, the employees were working as Boiler Attendant/Cable Jointer in UPSEB and were appointed as Apprentices.13. This Court (Three Judge Bench) in the case of U.P. State Electricity Board (supra) examined the provisions of Apprentices Act, 1961 in the context of U.P. Industrial Disputes Act, 1947 and then applying the law laid down in the case set aside the award of the Labour Court and upheld the termination.14. This would be clear from the facts set out from the case of U.P. State Electricity Board (supra) in para 63 which reads as under:63. Respondent 1 Shiv Mohan Singh was appointed as an apprentice Boiler Attendant under the Apprentices Act, 1961 from 11-4-1985 to 10-4-1988 and underwent training of the U.P. State Electricity Board. His contract was drawn up but not registered with the Apprenticeship Adviser. He completed his three years training and a certificate to this effect was issued to him and he was directed to appear before the National Council and on passing thereof he was to be awarded a certificate of proficiency as a Boiler Attendant. From this fact it is apparent that he was appointed as an apprentice trainee in the designated trade of Boiler Attendant. After completion of his training his services were terminated on 10-4-1988. It is clear from this fact that he was a Boiler Attendant. He completed three years training and after end of the training he was relieved as per the terms and conditions of the appointment as an apprentice in designated trade of Boiler Attendant and therefore he cannot be declared to be a worker under the Act and he cannot claim the benefit of Section 25-F of the Industrial Disputes Act, 1947 or Under Section 6-N of the U.P. Industrial Disputes Act, 1947. In this light the award given by the Labour Court in Award Dispute No. 166 of 1991 dated 12-8-1993 and the order dated 26-9-2002 passed in WP No. 21560 of 1995 by the High Court cannot be sustained. Civil appeal is allowed. Both the orders of the High Court dated 26-9-2002 and the award of the Labour Court dated 12-8-1993 are set aside.15. As mentioned supra, the facts of both the cases appear identical. In this view of the matter, the High Court, in our view, was justified in placing reliance on the decision of this Court in U.P. State Electricity Board (supra) and rightly allowed the Respondents (employers) writ petitions and set aside the awards of the Labour Court. It is rather unfortunate that the Labour Court did not take note of the law laid down in U.P. State Electricity Boards case and wrongly set aside the termination orders. We, therefore, concur with the reasoning and the conclusion arrived at by the High Court and uphold the impugned judgment.
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10. Having heard the learned Counsel for the parties and on perusal of the record of the case, we find no merit in these appeals11. In our considered opinion, the High Court was fully justified in placing reliance on the decision rendered by this Court in the case of U.P. State Electricity Board (supra) for allowing the Respondents writ petitions and setting aside of the awards of the Labour Court. Indeed, the facts of this case and of U.P. State Electricity Boards case (supra) are almost identical12. In fact, we find that in both the cases, the employees were working as Boiler Attendant/Cable Jointer in UPSEB and were appointed as Apprentices13. This Court (Three Judge Bench) in the case of U.P. State Electricity Board (supra) examined the provisions of Apprentices Act, 1961 in the context of U.P. Industrial Disputes Act, 1947 and then applying the law laid down in the case set aside the award of the Labour Court and upheld the termination14. This would be clear from the facts set out from the case of U.P. State Electricity Board (supra) in para 63 which reads as under:63. Respondent 1 Shiv Mohan Singh was appointed as an apprentice Boiler Attendant under the Apprentices Act, 1961 from 11-4-1985 to 10-4-1988 and underwent training of the U.P. State Electricity Board. His contract was drawn up but not registered with the Apprenticeship Adviser. He completed his three years training and a certificate to this effect was issued to him and he was directed to appear before the National Council and on passing thereof he was to be awarded a certificate of proficiency as a Boiler Attendant. From this fact it is apparent that he was appointed as an apprentice trainee in the designated trade of Boiler Attendant. After completion of his training his services were terminated on 10-4-1988. It is clear from this fact that he was a Boiler Attendant. He completed three years training and after end of the training he was relieved as per the terms and conditions of the appointment as an apprentice in designated trade of Boiler Attendant and therefore he cannot be declared to be a worker under the Act and he cannot claim the benefit of Section 25-F of the Industrial Disputes Act, 1947 or Under Section 6-N of the U.P. Industrial Disputes Act, 1947. In this light the award given by the Labour Court in Award Dispute No. 166 of 1991 dated 12-8-1993 and the order dated 26-9-2002 passed in WP No. 21560 of 1995 by the High Court cannot be sustained. Civil appeal is allowed. Both the orders of the High Court dated 26-9-2002 and the award of the Labour Court dated 12-8-1993 are set aside15. As mentioned supra, the facts of both the cases appear identical. In this view of the matter, the High Court, in our view, was justified in placing reliance on the decision of this Court in U.P. State Electricity Board (supra) and rightly allowed the Respondents (employers) writ petitions and set aside the awards of the Labour Court. It is rather unfortunate that the Labour Court did not take note of the law laid down in U.P. State Electricity Boards case and wrongly set aside the termination orders. We, therefore, concur with the reasoning and the conclusion arrived at by the High Court and uphold the impugned judgment.
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Fateh Bibi Etc Vs. Charan Dass | four relations by the Act. 14. In the case before us we have already pointed out that Charanji Lal was the absolute owner of the property and therefore there was no question of the property being held in coparcenary and there is no controversy that the property was not disposed of by will by Charanji Lal. Therefore, prima facie the Act will apply to the estate of Charanji Lal if it can be held that the succession to his estate opened only when his sister Maya Devi died on March 25, 1950. 15. The question is: When did succession open to the estate of Charanji Lal. Was it on the date when he died, i. e., August 22, 1925; or was in when his sister Maya Devi died, viz., March 25, 1950? 16. In this connection we may refer to the decisions in Shakuntla Devi v. Kaushalya Devi, ILR 17 Lah 356 = (AIR 1936 Lah 124); ILR 58 All 1041 = (AIR 1936 All 507 ) (FB); Pokhan Dusadh v. Mst. Manoa, ILR 16 Pat 215 = (AIR 1937 Pat 117 ) (FB); ILR (1937) Mad 948 = (AIR 1937 Mad 699 ) (FB) and Bindeshari Singh v. Baij Nath Singh, ILR 13 Luck 380 = (AIR 1937 Oudh 402). In all these cases the last male holder had died before the date of the Act and the estate was in the possession of a life - estate holder either a widow or a mother who died after the coming into force of the Act. It has been held in all these decisions that the succession to the estate of the last male-holder must be considered to open only on the termination of the life-estate and the Act will apply in considering the heirs of the last male holder at the termination of the life estate. 17. It is not necessary for us to refer to any of these decisions in great detail as the matter has been considered by the Judicial Committee of the Privy Council in Lala Duni Chand v. Mt. Anar Kali, 73 Ind App 187 = (AIR 1946 PC 173 ): The Judicial Committee had held that the Act which altered the order of succession of certain persons mentioned therein and which came into operation on February 21, 1929 applies not only to the case of a Hindu male dying intestate on or after February 21, 1929 but also to the case of such a male dying intestate before that date if he was succeeded by a female heir who died after that date. The Judicial Committee, has further held that succession in such cases to the estate of the last Hindu male who died intestate did not open until the death of the life-estate holder. It has also been held that during the lifetime of the life-estate holder, the reversioners in Hindu Law have no vested interest in the estate and that they have a mere spes successionis.It was contended before the Judicial Committee that the words Hindu male dying intestate occurring in the preamble to the Act connotes the future tense, of a Hindu male dying after the Act has come into force. This contention was rejected by the Judicial Committee, which observed as follows: In the argument before their Lordships reliance was placed on the words dying intestate in the Act as connoting the future tense, but their Lordships agree with the view of the Lahore High Court in ILR 17 Lah 356 = (AIR 1936 Lah 124) that the words are a mere description of the status of the deceased and have no reference, and are not intended to have any reference, to the time of the death of a Hindu male. The expression merely means in the case of intestacy of a Hindu male. To place this interpretation on the Act is not to give a retrospective effect to its provisions, the material point of time being the date when the succession opens, namely, the death of the widow. We are in entire agreement with the above observations of the Judicial Committee and accordingly hold that the point of time for the applicability of the Act is when the succession opens, viz., when the life estate terminates. In consequence, it must be further held that the questions as to who is the nearest reversionary heir, or what is the class of reversionary heirs will fall to be settled at the date of the expiry of the ownership for life or lives. The death of a Hindu female life-estate holder opens the inheritance to the reversioners and the one most nearly related at the time to the last full owner becomes entitled to the estate. 18.We hold that the Act applies also to the case of a Hindu male dying intestate before the Act came into operation and has been succeeded by a female heir who died after that date. In this case, on the findings recorded by all the Courts, the last female heir died only on March 25, 1950 and, under the Act, the plaintiff, as the sisters son of Charanji Lal, is entitled to succeed to his estate, in preference to the defendant who is only a paternal uncle. We have already pointed out that the paternal uncle is postponed to the four relations referred to in the Act, the last of whom is the sisters son. 19. Before we conclude, we may state that in this case the succession can be considered to have opened even on November 26, 1946 when Bishen Devis (the mothers) life estate terminated and it must be held that even Maya Devi, the sister of Charanji Lal, must be considered to have succeeded to the property of her brother, in her own right as a preferential heir under the Act, though the estate, taken by her under Section 3 (b) will only be a life-estate. No doubt these aspects have not been raised before any of the Courts, nor even before us. | 1[ds]13. We are of the opinion that the decision of the Letters Patent Bench is correct. No doubt, originally the view taken by some of the High Courts was that the Act applies only if the last male holder dies after the coming into force of the Act and it will have no retrospective application to cases of Hindu males dying intestate before the date of the Act. That view has now been given the go-by as is seen from the later decisions to which we shall refer presently. But before we refer to those decisions, we shall quote the observations of this Court in Annagouda Nathgouda Patil v. Court of Wards, 1952 SCR 208 at p. 215 = (AIR 1952 SC 60 at pp. 63-64) regarding the object and scope of the ActWe are in entire agreement with the above observations of the Judicial Committee and accordingly hold that the point of time for the applicability of the Act is when the succession opens, viz., when the life estate terminates. In consequence, it must be further held that the questions as to who is the nearest reversionary heir, or what is the class of reversionary heirs will fall to be settled at the date of the expiry of the ownership for life or lives. The death of a Hindu female life-estate holder opens the inheritance to the reversioners and the one most nearly related at the time to the last full owner becomes entitled to the estate18.We hold that the Act applies also to the case of a Hindu male dying intestate before the Act came into operation and has been succeeded by a female heir who died after that date. In this case, on the findings recorded by all the Courts, the last female heir died only on March 25, 1950 and, under the Act, the plaintiff, as the sisters son of Charanji Lal, is entitled to succeed to his estate, in preference to the defendant who is only a paternal uncle. We have already pointed out that the paternal uncle is postponed to the four relations referred to in the Act, the last of whom is the sisters son19. Before we conclude, we may state that in this case the succession can be considered to have opened even on November 26, 1946 when Bishen Devis (the mothers) life estate terminated and it must be held that even Maya Devi, the sister of Charanji Lal, must be considered to have succeeded to the property of her brother, in her own right as a preferential heir under the Act, though the estate, taken by her under Section 3 (b) will only be a life-estate. No doubt these aspects have not been raised before any of the Courts, nor even before us. | 1 | 3,745 | 508 | ### 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:
four relations by the Act. 14. In the case before us we have already pointed out that Charanji Lal was the absolute owner of the property and therefore there was no question of the property being held in coparcenary and there is no controversy that the property was not disposed of by will by Charanji Lal. Therefore, prima facie the Act will apply to the estate of Charanji Lal if it can be held that the succession to his estate opened only when his sister Maya Devi died on March 25, 1950. 15. The question is: When did succession open to the estate of Charanji Lal. Was it on the date when he died, i. e., August 22, 1925; or was in when his sister Maya Devi died, viz., March 25, 1950? 16. In this connection we may refer to the decisions in Shakuntla Devi v. Kaushalya Devi, ILR 17 Lah 356 = (AIR 1936 Lah 124); ILR 58 All 1041 = (AIR 1936 All 507 ) (FB); Pokhan Dusadh v. Mst. Manoa, ILR 16 Pat 215 = (AIR 1937 Pat 117 ) (FB); ILR (1937) Mad 948 = (AIR 1937 Mad 699 ) (FB) and Bindeshari Singh v. Baij Nath Singh, ILR 13 Luck 380 = (AIR 1937 Oudh 402). In all these cases the last male holder had died before the date of the Act and the estate was in the possession of a life - estate holder either a widow or a mother who died after the coming into force of the Act. It has been held in all these decisions that the succession to the estate of the last male-holder must be considered to open only on the termination of the life-estate and the Act will apply in considering the heirs of the last male holder at the termination of the life estate. 17. It is not necessary for us to refer to any of these decisions in great detail as the matter has been considered by the Judicial Committee of the Privy Council in Lala Duni Chand v. Mt. Anar Kali, 73 Ind App 187 = (AIR 1946 PC 173 ): The Judicial Committee had held that the Act which altered the order of succession of certain persons mentioned therein and which came into operation on February 21, 1929 applies not only to the case of a Hindu male dying intestate on or after February 21, 1929 but also to the case of such a male dying intestate before that date if he was succeeded by a female heir who died after that date. The Judicial Committee, has further held that succession in such cases to the estate of the last Hindu male who died intestate did not open until the death of the life-estate holder. It has also been held that during the lifetime of the life-estate holder, the reversioners in Hindu Law have no vested interest in the estate and that they have a mere spes successionis.It was contended before the Judicial Committee that the words Hindu male dying intestate occurring in the preamble to the Act connotes the future tense, of a Hindu male dying after the Act has come into force. This contention was rejected by the Judicial Committee, which observed as follows: In the argument before their Lordships reliance was placed on the words dying intestate in the Act as connoting the future tense, but their Lordships agree with the view of the Lahore High Court in ILR 17 Lah 356 = (AIR 1936 Lah 124) that the words are a mere description of the status of the deceased and have no reference, and are not intended to have any reference, to the time of the death of a Hindu male. The expression merely means in the case of intestacy of a Hindu male. To place this interpretation on the Act is not to give a retrospective effect to its provisions, the material point of time being the date when the succession opens, namely, the death of the widow. We are in entire agreement with the above observations of the Judicial Committee and accordingly hold that the point of time for the applicability of the Act is when the succession opens, viz., when the life estate terminates. In consequence, it must be further held that the questions as to who is the nearest reversionary heir, or what is the class of reversionary heirs will fall to be settled at the date of the expiry of the ownership for life or lives. The death of a Hindu female life-estate holder opens the inheritance to the reversioners and the one most nearly related at the time to the last full owner becomes entitled to the estate. 18.We hold that the Act applies also to the case of a Hindu male dying intestate before the Act came into operation and has been succeeded by a female heir who died after that date. In this case, on the findings recorded by all the Courts, the last female heir died only on March 25, 1950 and, under the Act, the plaintiff, as the sisters son of Charanji Lal, is entitled to succeed to his estate, in preference to the defendant who is only a paternal uncle. We have already pointed out that the paternal uncle is postponed to the four relations referred to in the Act, the last of whom is the sisters son. 19. Before we conclude, we may state that in this case the succession can be considered to have opened even on November 26, 1946 when Bishen Devis (the mothers) life estate terminated and it must be held that even Maya Devi, the sister of Charanji Lal, must be considered to have succeeded to the property of her brother, in her own right as a preferential heir under the Act, though the estate, taken by her under Section 3 (b) will only be a life-estate. No doubt these aspects have not been raised before any of the Courts, nor even before us.
### Response:
1
### Explanation:
13. We are of the opinion that the decision of the Letters Patent Bench is correct. No doubt, originally the view taken by some of the High Courts was that the Act applies only if the last male holder dies after the coming into force of the Act and it will have no retrospective application to cases of Hindu males dying intestate before the date of the Act. That view has now been given the go-by as is seen from the later decisions to which we shall refer presently. But before we refer to those decisions, we shall quote the observations of this Court in Annagouda Nathgouda Patil v. Court of Wards, 1952 SCR 208 at p. 215 = (AIR 1952 SC 60 at pp. 63-64) regarding the object and scope of the ActWe are in entire agreement with the above observations of the Judicial Committee and accordingly hold that the point of time for the applicability of the Act is when the succession opens, viz., when the life estate terminates. In consequence, it must be further held that the questions as to who is the nearest reversionary heir, or what is the class of reversionary heirs will fall to be settled at the date of the expiry of the ownership for life or lives. The death of a Hindu female life-estate holder opens the inheritance to the reversioners and the one most nearly related at the time to the last full owner becomes entitled to the estate18.We hold that the Act applies also to the case of a Hindu male dying intestate before the Act came into operation and has been succeeded by a female heir who died after that date. In this case, on the findings recorded by all the Courts, the last female heir died only on March 25, 1950 and, under the Act, the plaintiff, as the sisters son of Charanji Lal, is entitled to succeed to his estate, in preference to the defendant who is only a paternal uncle. We have already pointed out that the paternal uncle is postponed to the four relations referred to in the Act, the last of whom is the sisters son19. Before we conclude, we may state that in this case the succession can be considered to have opened even on November 26, 1946 when Bishen Devis (the mothers) life estate terminated and it must be held that even Maya Devi, the sister of Charanji Lal, must be considered to have succeeded to the property of her brother, in her own right as a preferential heir under the Act, though the estate, taken by her under Section 3 (b) will only be a life-estate. No doubt these aspects have not been raised before any of the Courts, nor even before us.
|
Bejoy Gopal Mukherji Vs. Pratul Chandra Ghose | on 22nd September, 1937, obtained a Mokarari Mourashi Patta in respect of the disputed land on payment of a Selami of Rs. 3,205 and at an annual rent of Rs. 78 only. The defendant Pratul Chandra Ghose filed rent suits against the plaintiff in respect of the underlease held by the latter under the Administrator-General of Bengal and obtained rent decrees. The plaintiff, however, on the strength of his new title derived from the superior landlords under the Mourashi Patta served notice on the defendant Pratul Chandra Ghose on the 7th October, 1937, requiring him to vacate the premises on the last day of the month of Chaitra 1944 B. S. The defendant Pratul Chandra Ghose, not having vacated the premises, the plaintiff filed the suit out of which the present appeal has arisen.5. Shri N. C. Chatterjee contends that in view of the decision in the suit of 1859 it was not open to the defendant Pratul Chandra Ghose to contend that his tenancy was a heritable permanent tenancy. This point was neither pleaded nor raised in the trial Court but was put forward for the first time before the High Court. The pleadings of the 1859 suit are not on the record but the substance of the written statement appears from the judgment Exhibit 24 passed in that case. The issues framed in that case have already been set out. There was no issue regarding the character of the tenancy, namely, whether it was permanent and heritable or otherwise. The only question there was whether rent could be assessed tinder the Regulation. There is nothing in that Regulation suggesting that rent could be assessed only if the tenancy was a ticca tenancy or that rent could not be assessed if the tenancy was a permanent one. The question of permanency of the tenancy was not, therefore, directly or substantially in issue. We find ourselves in agreement with the High Court that the permanency of tenure does not necessarily imply both fixity of rent and fixity of occupation. The fact of enhancement of rent in 1859 may be a circumstance to be taken into consideration but it does not necessarily militate against the tenancy being a permanent one, as held by the Privy Council in the case of an agricultural tenancy in Shankarrao v. Sambhu Wallad [(1940) 45 C.W.N. 57.]. The principle of that decision was applied also to non- agricultural tenancies in Jogendra Krishna Banerji v. Sm. Subashini Dassi [(1940) C.W.N. 590.]. In Probhas Chandra Mallik v. Debendra Nath Das [(1939) 43 C.W.N, 828] also the same view was taken. We, therefore, hold that the plea of res judicata cannot be sustained.6. Shri N. C. Chatterjee then contends, relying on the decisions in Rasmoy Purkatt v. Srinath Moyra (Supra), Digbijoy Roy v. Shaikh Aya Rahman (Supra), Satyendra Nath v. Charu Sankar (Supra) and Kamal Kumar Datta v. Nanda Lal Dule [(1929) I.L.R. 56 Cal. 738] that the tenancy in this case cannot be regarded as a permanent one. The decisions in those cases have to be read in the light of the facts of those particular cases. The mere fact of rent having been received from a certain person may not, as held in Rasamoy Purkatt v. Srinath Moyra (supra) and Digbijoy Roy v. Shaikh Aya Rahman (supra), amount to a recognition of that person as a tenant. Mere possession for generations at a uniform rent or construction of permanent structure by itself may not be conclusive proof of a permanent right as held in Kamal Kumar Dutt v. Nanda Lal Dule (supra) but the cumulative effect of such fact coupled with several other facts may lead to the inference of a permanent tenancy as indicated even in the case of Satyendra Nath v. Charu Sankar (supra) on which Shri N. C. Chatterjee relies. What, then, are the salient facts before us? It is not known how the earliest known tenant Shaik Manik acquired the tenancy or what the nature of that tenancy was. The tenancy has passed from one person to another by inheritance or by will or by transfers inter vivos. In the deeds of transfer the transferee has been given the right to enjoy the property from generation to generation for ever. A tank has been excavated and a pucca ghat built on the land. Bricks have been manufactured with the earth taken from the land and the premises have been enclosed within pucca walls. Pucca buildings have been erected and mortgages have been executed for substantial amounts. Although there was an enhancement of rent in 1860 that rent has continued to be paid ever since then. Portion of the premises, namely, No. 2, Watkins Lane, has been used as a factory by the plaintiffs and on the other portion, namely, No. 3, Watkins Lane, residential buildings were -erected which indicate that the lease was for residential purposes. As already indicated there have been many transfers and devolutions and the landlords have accepted rent from the transferees or the successors. The names of Mrs. Cynthia Mills and Dobson and, Jones were mutated in the Zamindars Sherista. Although in the rent receipts Dobson continued to be shown as the recorded tenant, eventually Joness name appears on the rent receipts as tenant. In spite of the increase in land value and the letting value the landlords through whom the plaintiff derives his title did not at any time make may attempt to eject the tenant or to get any further enhancement of rent since 1860. All these circumstances put together are explicable only on the hypothesis of permanency of the tenure and they irresistibly lead to the conclusion, as held by the lower Courts, that the tenancy in question was heritable and a permanent one. The decision of Mukherjea, J., in the case of Probhas Chandra Mallick v. Debendra Nath Das (supra) is definitely in point. In this view of the matter we hold that the Courts below were right in dismissing the plaintiffs claim for ejectment.7. | 0[ds]It appears that on the death of George Jones the estate came into the hands of the Administrator-General of Bengal representing the estate of George Jones. In the rent receipts of Dighapatia Raj the rent is said to be "received from Jones--Administrator-General of Bengal." In May, 1931, the plaintiff and the Administrator-General of Bengal entered into an agreement for sale of premises No. 2, Watkins Lane, being a portion of the premises in question, for a sum of Rs. 10,001 and Rs. 1,001 was paid by the plaintiff as and by way of earnest money. The landlords having declined to subdivide the ground rent between the two portions of the premises, namely, Nos. 2 and 3, Watkins Lane, and a portion of the Premises No. 2, Watkins Lane, having fallen down the agreement for sale appears to have fallen through. On the 4th June, 1932, the plaintiff suggested that a lease for 20 years should be granted which was refused by the Administrator-General, Bengal. Then there was some negotiation between the plaintiff and the Administrator- General of Bengal for the sale of both the premises, Nos. 2 and 3, Watkins Lane, to the plaintiff for a sum of Rs. 12,500. The plaintiff on 9th April, 1933, sent a draft deed of sale (Exhibit 15) for the approval of the Administrator- General of Bengal describing the premises as a Mokarari Mourashi homestead. On 21st April, 1933, Dighapatia Raj Estate wrote to the Administrator-General. of Bengal saying that the tenancy was a Ticca one. On 6th June, 1933, the Administrator-General of Bengal declined to approve the draft as drawn. After some further proposal by the plaintiff for a long lease he declined to purchase the property on the ground that the Administrator-General of Bengal had not a good marketable title. Nothing having come out of the negotiations between the plaintiff and the Administrator-General of Bengal the latter in September, 1936, invited offers for sale of the lands (Exhibit B). The defendant No. I made the highest offer of Rs.and this was accepted by the Administrator-General in preference to the offer made by the plaintiff for Rs.The Administrator-General accordingly executed a conveyance in favour of the defendant Pratul Chandra Ghose (Exhibit P. X) who thereupon became the tenant of the premises. Having failed to obtain title to the premises from the Administrator-General of Bengal the plaintiff approached the landlords and on 22nd September, 1937, obtained a Mokarari Mourashi Patta in respect of the disputed land on payment of a Selami of Rs. 3,205 and at an annual rent of Rs. 78 only. The defendant Pratul Chandra Ghose filed rent suits against the plaintiff in respect of the underlease held by the latter under the Administrator-General of Bengal and obtained rent decrees. The plaintiff, however, on the strength of his new title derived from the superior landlords under the Mourashi Patta served notice on the defendant Pratul Chandra Ghose on the 7th October, 1937, requiring him to vacate the premises on the last day of the month of Chaitra 1944 B. S. The defendant Pratul Chandra Ghose, not having vacated the premises, the plaintiff filed the suit out of which the present appeal hasthe deeds of transfer the transferee has been given the right to enjoy the property from generation to generation for ever. A tank has been excavated and a pucca ghat built on the land. Bricks have been manufactured with the earth taken from the land and the premises have been enclosed within pucca walls. Pucca buildings have been erected and mortgages have been executed for substantial amounts. Although there was an enhancement of rent in 1860 that rent has continued to be paid ever since then. Portion of the premises, namely, No. 2, Watkins Lane, has been used as a factory by the plaintiffs and on the other portion, namely, No. 3, Watkins Lane, residential buildings were -erected which indicate that the lease was for residential purposes. As already indicated there have been many transfers and devolutions and the landlords have accepted rent from the transferees or the successors. The names of Mrs. Cynthia Mills and Dobson and, Jones were mutated in the Zamindars Sherista. Although in the rent receipts Dobson continued to be shown as the recorded tenant, eventually Joness name appears on the rent receipts as tenant. In spite of the increase in land value and the letting value the landlords through whom the plaintiff derives his title did not at any time make may attempt to eject the tenant or to get any further enhancement of rent since 1860. All these circumstances put together are explicable only on the hypothesis of permanency of the tenure and they irresistibly lead to the conclusion, as held by the lower Courts, that the tenancy in question was heritable and a permanent one. The decision of Mukherjea, J., in the case of Probhas Chandra Mallick v. Debendra Nath Das (supra) is definitely in point. In this view of the matter we hold that the Courts below were right in dismissing the plaintiffs claim for ejectment. | 0 | 3,191 | 946 | ### 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:
on 22nd September, 1937, obtained a Mokarari Mourashi Patta in respect of the disputed land on payment of a Selami of Rs. 3,205 and at an annual rent of Rs. 78 only. The defendant Pratul Chandra Ghose filed rent suits against the plaintiff in respect of the underlease held by the latter under the Administrator-General of Bengal and obtained rent decrees. The plaintiff, however, on the strength of his new title derived from the superior landlords under the Mourashi Patta served notice on the defendant Pratul Chandra Ghose on the 7th October, 1937, requiring him to vacate the premises on the last day of the month of Chaitra 1944 B. S. The defendant Pratul Chandra Ghose, not having vacated the premises, the plaintiff filed the suit out of which the present appeal has arisen.5. Shri N. C. Chatterjee contends that in view of the decision in the suit of 1859 it was not open to the defendant Pratul Chandra Ghose to contend that his tenancy was a heritable permanent tenancy. This point was neither pleaded nor raised in the trial Court but was put forward for the first time before the High Court. The pleadings of the 1859 suit are not on the record but the substance of the written statement appears from the judgment Exhibit 24 passed in that case. The issues framed in that case have already been set out. There was no issue regarding the character of the tenancy, namely, whether it was permanent and heritable or otherwise. The only question there was whether rent could be assessed tinder the Regulation. There is nothing in that Regulation suggesting that rent could be assessed only if the tenancy was a ticca tenancy or that rent could not be assessed if the tenancy was a permanent one. The question of permanency of the tenancy was not, therefore, directly or substantially in issue. We find ourselves in agreement with the High Court that the permanency of tenure does not necessarily imply both fixity of rent and fixity of occupation. The fact of enhancement of rent in 1859 may be a circumstance to be taken into consideration but it does not necessarily militate against the tenancy being a permanent one, as held by the Privy Council in the case of an agricultural tenancy in Shankarrao v. Sambhu Wallad [(1940) 45 C.W.N. 57.]. The principle of that decision was applied also to non- agricultural tenancies in Jogendra Krishna Banerji v. Sm. Subashini Dassi [(1940) C.W.N. 590.]. In Probhas Chandra Mallik v. Debendra Nath Das [(1939) 43 C.W.N, 828] also the same view was taken. We, therefore, hold that the plea of res judicata cannot be sustained.6. Shri N. C. Chatterjee then contends, relying on the decisions in Rasmoy Purkatt v. Srinath Moyra (Supra), Digbijoy Roy v. Shaikh Aya Rahman (Supra), Satyendra Nath v. Charu Sankar (Supra) and Kamal Kumar Datta v. Nanda Lal Dule [(1929) I.L.R. 56 Cal. 738] that the tenancy in this case cannot be regarded as a permanent one. The decisions in those cases have to be read in the light of the facts of those particular cases. The mere fact of rent having been received from a certain person may not, as held in Rasamoy Purkatt v. Srinath Moyra (supra) and Digbijoy Roy v. Shaikh Aya Rahman (supra), amount to a recognition of that person as a tenant. Mere possession for generations at a uniform rent or construction of permanent structure by itself may not be conclusive proof of a permanent right as held in Kamal Kumar Dutt v. Nanda Lal Dule (supra) but the cumulative effect of such fact coupled with several other facts may lead to the inference of a permanent tenancy as indicated even in the case of Satyendra Nath v. Charu Sankar (supra) on which Shri N. C. Chatterjee relies. What, then, are the salient facts before us? It is not known how the earliest known tenant Shaik Manik acquired the tenancy or what the nature of that tenancy was. The tenancy has passed from one person to another by inheritance or by will or by transfers inter vivos. In the deeds of transfer the transferee has been given the right to enjoy the property from generation to generation for ever. A tank has been excavated and a pucca ghat built on the land. Bricks have been manufactured with the earth taken from the land and the premises have been enclosed within pucca walls. Pucca buildings have been erected and mortgages have been executed for substantial amounts. Although there was an enhancement of rent in 1860 that rent has continued to be paid ever since then. Portion of the premises, namely, No. 2, Watkins Lane, has been used as a factory by the plaintiffs and on the other portion, namely, No. 3, Watkins Lane, residential buildings were -erected which indicate that the lease was for residential purposes. As already indicated there have been many transfers and devolutions and the landlords have accepted rent from the transferees or the successors. The names of Mrs. Cynthia Mills and Dobson and, Jones were mutated in the Zamindars Sherista. Although in the rent receipts Dobson continued to be shown as the recorded tenant, eventually Joness name appears on the rent receipts as tenant. In spite of the increase in land value and the letting value the landlords through whom the plaintiff derives his title did not at any time make may attempt to eject the tenant or to get any further enhancement of rent since 1860. All these circumstances put together are explicable only on the hypothesis of permanency of the tenure and they irresistibly lead to the conclusion, as held by the lower Courts, that the tenancy in question was heritable and a permanent one. The decision of Mukherjea, J., in the case of Probhas Chandra Mallick v. Debendra Nath Das (supra) is definitely in point. In this view of the matter we hold that the Courts below were right in dismissing the plaintiffs claim for ejectment.7.
### Response:
0
### Explanation:
It appears that on the death of George Jones the estate came into the hands of the Administrator-General of Bengal representing the estate of George Jones. In the rent receipts of Dighapatia Raj the rent is said to be "received from Jones--Administrator-General of Bengal." In May, 1931, the plaintiff and the Administrator-General of Bengal entered into an agreement for sale of premises No. 2, Watkins Lane, being a portion of the premises in question, for a sum of Rs. 10,001 and Rs. 1,001 was paid by the plaintiff as and by way of earnest money. The landlords having declined to subdivide the ground rent between the two portions of the premises, namely, Nos. 2 and 3, Watkins Lane, and a portion of the Premises No. 2, Watkins Lane, having fallen down the agreement for sale appears to have fallen through. On the 4th June, 1932, the plaintiff suggested that a lease for 20 years should be granted which was refused by the Administrator-General, Bengal. Then there was some negotiation between the plaintiff and the Administrator- General of Bengal for the sale of both the premises, Nos. 2 and 3, Watkins Lane, to the plaintiff for a sum of Rs. 12,500. The plaintiff on 9th April, 1933, sent a draft deed of sale (Exhibit 15) for the approval of the Administrator- General of Bengal describing the premises as a Mokarari Mourashi homestead. On 21st April, 1933, Dighapatia Raj Estate wrote to the Administrator-General. of Bengal saying that the tenancy was a Ticca one. On 6th June, 1933, the Administrator-General of Bengal declined to approve the draft as drawn. After some further proposal by the plaintiff for a long lease he declined to purchase the property on the ground that the Administrator-General of Bengal had not a good marketable title. Nothing having come out of the negotiations between the plaintiff and the Administrator-General of Bengal the latter in September, 1936, invited offers for sale of the lands (Exhibit B). The defendant No. I made the highest offer of Rs.and this was accepted by the Administrator-General in preference to the offer made by the plaintiff for Rs.The Administrator-General accordingly executed a conveyance in favour of the defendant Pratul Chandra Ghose (Exhibit P. X) who thereupon became the tenant of the premises. Having failed to obtain title to the premises from the Administrator-General of Bengal the plaintiff approached the landlords and on 22nd September, 1937, obtained a Mokarari Mourashi Patta in respect of the disputed land on payment of a Selami of Rs. 3,205 and at an annual rent of Rs. 78 only. The defendant Pratul Chandra Ghose filed rent suits against the plaintiff in respect of the underlease held by the latter under the Administrator-General of Bengal and obtained rent decrees. The plaintiff, however, on the strength of his new title derived from the superior landlords under the Mourashi Patta served notice on the defendant Pratul Chandra Ghose on the 7th October, 1937, requiring him to vacate the premises on the last day of the month of Chaitra 1944 B. S. The defendant Pratul Chandra Ghose, not having vacated the premises, the plaintiff filed the suit out of which the present appeal hasthe deeds of transfer the transferee has been given the right to enjoy the property from generation to generation for ever. A tank has been excavated and a pucca ghat built on the land. Bricks have been manufactured with the earth taken from the land and the premises have been enclosed within pucca walls. Pucca buildings have been erected and mortgages have been executed for substantial amounts. Although there was an enhancement of rent in 1860 that rent has continued to be paid ever since then. Portion of the premises, namely, No. 2, Watkins Lane, has been used as a factory by the plaintiffs and on the other portion, namely, No. 3, Watkins Lane, residential buildings were -erected which indicate that the lease was for residential purposes. As already indicated there have been many transfers and devolutions and the landlords have accepted rent from the transferees or the successors. The names of Mrs. Cynthia Mills and Dobson and, Jones were mutated in the Zamindars Sherista. Although in the rent receipts Dobson continued to be shown as the recorded tenant, eventually Joness name appears on the rent receipts as tenant. In spite of the increase in land value and the letting value the landlords through whom the plaintiff derives his title did not at any time make may attempt to eject the tenant or to get any further enhancement of rent since 1860. All these circumstances put together are explicable only on the hypothesis of permanency of the tenure and they irresistibly lead to the conclusion, as held by the lower Courts, that the tenancy in question was heritable and a permanent one. The decision of Mukherjea, J., in the case of Probhas Chandra Mallick v. Debendra Nath Das (supra) is definitely in point. In this view of the matter we hold that the Courts below were right in dismissing the plaintiffs claim for ejectment.
|
Commissioner of Sales Tax, U.P Vs. S. R. Brothers, Kanpur | in statutes like the Sales Tax Acts, resort should be had not to the scientific or technical meaning of such terms, but to their popular meaning or the meaning attached to them by those dealing in them, that is to say, to their commercial sense. In the course of the judgment, after referring to certain decisions, including the decisions from Australian, Canadian and English Courts, it was observed:"The result emerging from these decisions is that while construing the word "coal" in entry 1 of Part III of Schedule II, the test that would be applied is what would be the meaning which persons dealing with coal and consumers purchasing it as fuel would give to that word. A sales tax statute, being one levying a tax on goods must, in the absence of a technical term or a term of science or art, be presumed to have used an ordinary term as coal according to the meaning ascribed to it in common parlance. Viewed from that angle both a merchant dealing in coal and a consumer wanting to purchase it would regard coal not in its geological sense but in the sense as ordinarily understood and would include charcoal in the term coal. It is only when the question of the kind or variety of coal would arise that a distinction would be made between coal and charcoal, otherwise both of them would in ordinary parlance as also in their commercial sense be spoken as coal." It may be pointed out that the entry in the case cited read "coal including coke in all its forms". In Sales Tax Commissioner, U. P. v. Ladha Singh Mal Singh, (1971) 28 STC 325 = (AIR 1971 SC 2221 ) cloth manufactured by means of power-looms was held by this Court not to fall within the words "cloth manufactured by mills" in the Notification dated June 8, 1948, issued under S. 3A of the Act and the sale of such cloth was held not liable to be taxed at the higher rate of 6 Ps. in a rupee. According to this decision powerloom cloth in popular language is never associated with mill cloth. In view of these and some other decisions the learned counsel for the appellant, it may be said in fairness, did not dispute that the words with which we are concerned must be construed in the sense which is imputed to them by the persons who deal in and who consume such articles. 6. "Food colours" and "syrup essence" being themselves known articles of common use, the question arises whether the words and expressions used in entries 10 and 37 of the List are intended to take within their fold goods popularly known in common parlance by the names of "food colours" and "syrup essences". 7. It cannot be gainsaid that "food colours" and "syrup essences" are edible goods whereas "dyes and colours and compositions thereof" and "scents and perfumes" as specified in entries nos. 10 and 37 of the List do not seem prima facie to connote that they are edible goods.This is the reasoning of the High Court and it appears to us to be both logical and rational. Indeed, except for items like salt in entry no. 34, the "sugar manufactured by mills" (entry no. 40) and "Banaspati, including refined coconut oil" (entry no. 43) which is capable of being used as medium for cooking is prima facie edible there does not seem to be any other edible article included in the List. Item no. 25 speaks of "oils of all kinds other than edible oils manufactured on Ghanis by human or animal power". This scheme suggests that, apart from the undoubted edible goods, in cases where the import of the specified goods is wide enough to include both edible and non-edible category then the intention has been clearly expressed whether or not to include edible goods. Now in the case of entries nos. 10 and 37 we are inclined to think in agreement with the High Court that these entries are not intended to extend to edible colours like food colours and to edible essence like syrup essences. It would indeed be straining the meanings of the words and expressions in those entries as understood in popular commercial sense to include edible colours and essence. If the intention of the State Government was to include food colours in entry No. 10 and syrup essences in entry no. 37 then in our view these goods could easily have been specified by their own popularly known description. In any event assuming that another view as to the meaning of these entries is possible we have not been persuaded to hold that the view taken by the High Court is so grossly erroneous that we should interfere on special leave appeal under Art. 136 of the Constitution. 8. Shri Manchanda made a passing reference to the Prevention of Food Adulteration Rules, 1955 framed under Ss. 4 and 23 of the Prevention of Food Adulteration Act, 37 of 1954 and pointed out that R. 23 postulates addition of colouring matter to an article of food when permitted. This, according to the argument, suggests that the word colour as used in entry no. 10 of the list of the Notification in question has been used in a broad enough sense so as to take within its fold edible colour or food colour. We are not impressed by this argument. Rule 23 of the Prevention of Food Adulteration Rules indeed seems to go against the submission. 9. The appellants learned counsel had at one stage suggested that the goods intended to be taxed under S. 3A of the Act are all luxury goods and therefore food colours and syrup essences which are normally used by comparatively richer class of society should be presumed to have been intended to be included in items nos. 10 and 37 of the List. On closer scrutiny of the List, however, this point was rightly not developed. | 0[ds]7. It cannot be gainsaid that "food colours" and "syrup essences" are edible goods whereas "dyes and colours and compositions thereof" and "scents and perfumes" as specified in entries nos. 10 and 37 of the List do not seem prima facie to connote that they are edible goods.This is the reasoning of the High Court and it appears to us to be both logical and rational. Indeed, except for items like salt in entry no. 34, the "sugar manufactured by mills" (entry no. 40) and "Banaspati, including refined coconut oil" (entry no. 43) which is capable of being used as medium for cooking is prima facie edible there does not seem to be any other edible article included in the List. Item no. 25 speaks of "oils of all kinds other than edible oils manufactured on Ghanis by human or animal power". This scheme suggests that, apart from the undoubted edible goods, in cases where the import of the specified goods is wide enough to include both edible and non-edible category then the intention has been clearly expressed whether or not to include edible goods. Now in the case of entries nos. 10 and 37 we are inclined to think in agreement with the High Court that these entries are not intended to extend to edible colours like food colours and to edible essence like syrup essences. It would indeed be straining the meanings of the words and expressions in those entries as understood in popular commercial sense to include edible colours and essence. If the intention of the State Government was to include food colours in entry No. 10 and syrup essences in entry no. 37 then in our view these goods could easily have been specified by their own popularly known description. In any event assuming that another view as to the meaning of these entries is possible we have not been persuaded to hold that the view taken by the High Court is so grossly erroneous that we should interfere on special leave appeal under Art. 136 of the Constitution. | 0 | 3,482 | 389 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
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in statutes like the Sales Tax Acts, resort should be had not to the scientific or technical meaning of such terms, but to their popular meaning or the meaning attached to them by those dealing in them, that is to say, to their commercial sense. In the course of the judgment, after referring to certain decisions, including the decisions from Australian, Canadian and English Courts, it was observed:"The result emerging from these decisions is that while construing the word "coal" in entry 1 of Part III of Schedule II, the test that would be applied is what would be the meaning which persons dealing with coal and consumers purchasing it as fuel would give to that word. A sales tax statute, being one levying a tax on goods must, in the absence of a technical term or a term of science or art, be presumed to have used an ordinary term as coal according to the meaning ascribed to it in common parlance. Viewed from that angle both a merchant dealing in coal and a consumer wanting to purchase it would regard coal not in its geological sense but in the sense as ordinarily understood and would include charcoal in the term coal. It is only when the question of the kind or variety of coal would arise that a distinction would be made between coal and charcoal, otherwise both of them would in ordinary parlance as also in their commercial sense be spoken as coal." It may be pointed out that the entry in the case cited read "coal including coke in all its forms". In Sales Tax Commissioner, U. P. v. Ladha Singh Mal Singh, (1971) 28 STC 325 = (AIR 1971 SC 2221 ) cloth manufactured by means of power-looms was held by this Court not to fall within the words "cloth manufactured by mills" in the Notification dated June 8, 1948, issued under S. 3A of the Act and the sale of such cloth was held not liable to be taxed at the higher rate of 6 Ps. in a rupee. According to this decision powerloom cloth in popular language is never associated with mill cloth. In view of these and some other decisions the learned counsel for the appellant, it may be said in fairness, did not dispute that the words with which we are concerned must be construed in the sense which is imputed to them by the persons who deal in and who consume such articles. 6. "Food colours" and "syrup essence" being themselves known articles of common use, the question arises whether the words and expressions used in entries 10 and 37 of the List are intended to take within their fold goods popularly known in common parlance by the names of "food colours" and "syrup essences". 7. It cannot be gainsaid that "food colours" and "syrup essences" are edible goods whereas "dyes and colours and compositions thereof" and "scents and perfumes" as specified in entries nos. 10 and 37 of the List do not seem prima facie to connote that they are edible goods.This is the reasoning of the High Court and it appears to us to be both logical and rational. Indeed, except for items like salt in entry no. 34, the "sugar manufactured by mills" (entry no. 40) and "Banaspati, including refined coconut oil" (entry no. 43) which is capable of being used as medium for cooking is prima facie edible there does not seem to be any other edible article included in the List. Item no. 25 speaks of "oils of all kinds other than edible oils manufactured on Ghanis by human or animal power". This scheme suggests that, apart from the undoubted edible goods, in cases where the import of the specified goods is wide enough to include both edible and non-edible category then the intention has been clearly expressed whether or not to include edible goods. Now in the case of entries nos. 10 and 37 we are inclined to think in agreement with the High Court that these entries are not intended to extend to edible colours like food colours and to edible essence like syrup essences. It would indeed be straining the meanings of the words and expressions in those entries as understood in popular commercial sense to include edible colours and essence. If the intention of the State Government was to include food colours in entry No. 10 and syrup essences in entry no. 37 then in our view these goods could easily have been specified by their own popularly known description. In any event assuming that another view as to the meaning of these entries is possible we have not been persuaded to hold that the view taken by the High Court is so grossly erroneous that we should interfere on special leave appeal under Art. 136 of the Constitution. 8. Shri Manchanda made a passing reference to the Prevention of Food Adulteration Rules, 1955 framed under Ss. 4 and 23 of the Prevention of Food Adulteration Act, 37 of 1954 and pointed out that R. 23 postulates addition of colouring matter to an article of food when permitted. This, according to the argument, suggests that the word colour as used in entry no. 10 of the list of the Notification in question has been used in a broad enough sense so as to take within its fold edible colour or food colour. We are not impressed by this argument. Rule 23 of the Prevention of Food Adulteration Rules indeed seems to go against the submission. 9. The appellants learned counsel had at one stage suggested that the goods intended to be taxed under S. 3A of the Act are all luxury goods and therefore food colours and syrup essences which are normally used by comparatively richer class of society should be presumed to have been intended to be included in items nos. 10 and 37 of the List. On closer scrutiny of the List, however, this point was rightly not developed.
### Response:
0
### Explanation:
7. It cannot be gainsaid that "food colours" and "syrup essences" are edible goods whereas "dyes and colours and compositions thereof" and "scents and perfumes" as specified in entries nos. 10 and 37 of the List do not seem prima facie to connote that they are edible goods.This is the reasoning of the High Court and it appears to us to be both logical and rational. Indeed, except for items like salt in entry no. 34, the "sugar manufactured by mills" (entry no. 40) and "Banaspati, including refined coconut oil" (entry no. 43) which is capable of being used as medium for cooking is prima facie edible there does not seem to be any other edible article included in the List. Item no. 25 speaks of "oils of all kinds other than edible oils manufactured on Ghanis by human or animal power". This scheme suggests that, apart from the undoubted edible goods, in cases where the import of the specified goods is wide enough to include both edible and non-edible category then the intention has been clearly expressed whether or not to include edible goods. Now in the case of entries nos. 10 and 37 we are inclined to think in agreement with the High Court that these entries are not intended to extend to edible colours like food colours and to edible essence like syrup essences. It would indeed be straining the meanings of the words and expressions in those entries as understood in popular commercial sense to include edible colours and essence. If the intention of the State Government was to include food colours in entry No. 10 and syrup essences in entry no. 37 then in our view these goods could easily have been specified by their own popularly known description. In any event assuming that another view as to the meaning of these entries is possible we have not been persuaded to hold that the view taken by the High Court is so grossly erroneous that we should interfere on special leave appeal under Art. 136 of the Constitution.
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Green View Tea and Industries Vs. Collector, Golaghat and Another | the compensation awarded by the Collector, Golaghat, at the rate of Rs. 7000 per bigha was restored. Against that judgment of the High Court, the petitioner filed Review Application No. 54 of 1998 in the High Court. He filed Special Leave Petitions (C) Nos. 18020-22 of 1998 also seeking leave of this Court to appeal against the said common judgment of the High Court dated 24-6-1998. On 8-3-1999 he was permitted to withdraw the special leave petitions as his review application in the High Court was pending. On 25-8-1999, the said review application was dismissed by the High Court and its order is the subject-matter of Special Leave Petition (C) No. 5417 of 2000. However, against the said common judgment of the High Court dated 24-6-1998, the petitioner again filed Special Leave Petitions Nos. 18180-82 of 1999 delayed by 399 days. On 1-12-1999, this Court condoned the delay but dismissed the special leave petitions, which is the subject-matter of the review petitions.Mr. Shanti Bhushan, the learned Senior Counsel appearing for the petitioner in review petitions and special leave petition, argued that in the chamber of the then Chief Minister, the Company as well as the Collector assessed the compensation for the acquired land at the rate of Rs. 55, 000 per bigha and that being the market value of the land, the Collector in the award ought not to have reduced compensation to Rs. 7000 per bigha. In any event, the compensation enhanced by the District Judge at Rs. 22, 000 per bigha, being far less than the compensation resolved in the chamber of the then Chief Minister, was erroneously set aside by the High Court in appeal. In review application the High Court failed to take note of the fact that relevant documents - Exts. 6, 7 and 8 and the communication of 3-7-1999 - were not taken into consideration in the common judgment and consequently the petitioner was deprived of enhanced compensation at the rate of Rs. 55, 000 per bigha.In the written submissions of the petitioner, in the reply to the affidavit filed on behalf of Respondent 1, the following are the relevant averments :"3(c) That in LA Case No. 1 of 1996-97, Rs. 34, 286 (Rupees Thirty-Four Thousand Two Hundred and Eighty-Six) per bigha was paid to M/s. Halmira Properties (Pvt.) Ltd., Golaghat as compensation for the land acquired for Numaligarh Refinery Ltd.The certified copy of the order-sheet of the award of the Sub-Divisional Officer and Collector, Bokakhat, in the district of Golaghat, is annexed herewith as Annexure A-1. (d) That in LA Case No. 6 of 1997-98, Rs. 41, 667 (Rupees Forty-One Thousand Six Hundred and Sixty-Seven) per bigha was paid to Shri Prafulla Kakoty and others as compensation for the land acquired for Numaligarh Refinery Ltd.The certified copy of the order-sheet of the award of the Sub-Divisional Officer and Collector, Bokakhat, in the district of Golaghat is annexed herewith as Annexure A-2. (e) That even the Government of Assam had acquired government land measuring 18B-4K-14L for Numaligarh Refinery Ltd. for the purpose of construction of school at the valuation of Rs. 34, 286 (Thirty-Four Thousand Two Hundred and Eighty-Six only) per bigha subject to payment of 100% land value as premium." * Mr. Soli J. Sorabjee, the learned Attorney-General appearing for the respondents, has contended that there is nothing illegal in the order sought to be reviewed, therefore, the review petitions are liable to be dismissed; no arguments based on Exts. 6, 7 and 8 were addressed before the High Court nor was any ground taken in the memorandum of appeal in respect of the said documents, therefore, on the ground of non-consideration of those documents no review application could be maintained.In the written submissions in the affidavit filed by the Director of Land, Requisition, Acquisition and Reforms, Assam, Guwahati, filed on behalf of the first respondent, para 5 reads thus :"It is submitted that, the mutually agreed valuation of Rs. 55, 000 per bigha by ONGC at Sibsagar District, as stated by the petitioners has been discontinued since 1-1-1993. The Government decision to this effect, as derived in a meeting on 19-9-1994 is enclosed herewith." * The law in regard to review of an order of this Court is too well settled to justify an elaborate discussion on the point. Suffice it to observe that the finality of the order of the apex court of the country should not lightly be unsettled. A review of a judgment, observed Krishna Iyer, J. in Sow Chandra Kanta v. Sheik Habib (1975 SC 627 : 1975 AIR(SC) 1500 : 1975 SC 627 : 1975 SCC(Tax) 2001) : "May be, we were not right in refusing special leave. ... A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility." * Now adverting to Review Petitions Nos. 306-08 of 2000, we find that they are devoid of any merit. It is noted above that the petitioner having earlier challenged the common judgment of the High Court dated 24-6-1998 in Special Leave Petitions (C) Nos. 18020-22 of 1998 withdrew the same with liberty to pursue Review Application No. 54 of 1998 filed in the High Court. Having lost in the High Court he again sought leave to appeal against the very same common judgment of the High Court by filing Special Leave Petitions (C) Nos. 18180-82 of 1999 which were dismissed by this Court on 1-12-1999. Having withdrawn earlier SLPs Nos. 18020-22 of 1998, he could not have been allowed to maintain SLPs Nos. 18180-82 of 1999. He cannot, in the guise of the review petitions, be permitted to revive the incompetent special leave petitions. We are not persuaded to accept the contention that the order of this Court dated 1-12-1999 suffers from any error much less an error on the face of the record; there is absolutely no merit in the review petitions. | 0[ds]The law in regard to review of an order of this Court is too well settled to justify an elaborate discussion on the point. Suffice it to observe that the finality of the order of the apex court of the country should not lightly beadverting to Review Petitions Nos.of 2000, we find that they are devoid of any merit. It is noted above that the petitioner having earlier challenged the common judgment of the High Court datedin Special Leave Petitions (C) Nos.of 1998 withdrew the same with liberty to pursue Review Application No. 54 of 1998 filed in the High Court. Having lost in the High Court he again sought leave to appeal against the very same common judgment of the High Court by filing Special Leave Petitions (C) Nos.of 1999 which were dismissed by this Court onHaving withdrawn earlier SLPs Nos.of 1998, he could not have been allowed to maintain SLPs Nos.of 1999. He cannot, in the guise of the review petitions, be permitted to revive the incompetent special leave petitions. We are not persuaded to accept the contention that the order of this Court datedsuffers from any error much less an error on the face of the record; there is absolutely no merit in the review petitions. | 0 | 1,673 | 230 | ### 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 compensation awarded by the Collector, Golaghat, at the rate of Rs. 7000 per bigha was restored. Against that judgment of the High Court, the petitioner filed Review Application No. 54 of 1998 in the High Court. He filed Special Leave Petitions (C) Nos. 18020-22 of 1998 also seeking leave of this Court to appeal against the said common judgment of the High Court dated 24-6-1998. On 8-3-1999 he was permitted to withdraw the special leave petitions as his review application in the High Court was pending. On 25-8-1999, the said review application was dismissed by the High Court and its order is the subject-matter of Special Leave Petition (C) No. 5417 of 2000. However, against the said common judgment of the High Court dated 24-6-1998, the petitioner again filed Special Leave Petitions Nos. 18180-82 of 1999 delayed by 399 days. On 1-12-1999, this Court condoned the delay but dismissed the special leave petitions, which is the subject-matter of the review petitions.Mr. Shanti Bhushan, the learned Senior Counsel appearing for the petitioner in review petitions and special leave petition, argued that in the chamber of the then Chief Minister, the Company as well as the Collector assessed the compensation for the acquired land at the rate of Rs. 55, 000 per bigha and that being the market value of the land, the Collector in the award ought not to have reduced compensation to Rs. 7000 per bigha. In any event, the compensation enhanced by the District Judge at Rs. 22, 000 per bigha, being far less than the compensation resolved in the chamber of the then Chief Minister, was erroneously set aside by the High Court in appeal. In review application the High Court failed to take note of the fact that relevant documents - Exts. 6, 7 and 8 and the communication of 3-7-1999 - were not taken into consideration in the common judgment and consequently the petitioner was deprived of enhanced compensation at the rate of Rs. 55, 000 per bigha.In the written submissions of the petitioner, in the reply to the affidavit filed on behalf of Respondent 1, the following are the relevant averments :"3(c) That in LA Case No. 1 of 1996-97, Rs. 34, 286 (Rupees Thirty-Four Thousand Two Hundred and Eighty-Six) per bigha was paid to M/s. Halmira Properties (Pvt.) Ltd., Golaghat as compensation for the land acquired for Numaligarh Refinery Ltd.The certified copy of the order-sheet of the award of the Sub-Divisional Officer and Collector, Bokakhat, in the district of Golaghat, is annexed herewith as Annexure A-1. (d) That in LA Case No. 6 of 1997-98, Rs. 41, 667 (Rupees Forty-One Thousand Six Hundred and Sixty-Seven) per bigha was paid to Shri Prafulla Kakoty and others as compensation for the land acquired for Numaligarh Refinery Ltd.The certified copy of the order-sheet of the award of the Sub-Divisional Officer and Collector, Bokakhat, in the district of Golaghat is annexed herewith as Annexure A-2. (e) That even the Government of Assam had acquired government land measuring 18B-4K-14L for Numaligarh Refinery Ltd. for the purpose of construction of school at the valuation of Rs. 34, 286 (Thirty-Four Thousand Two Hundred and Eighty-Six only) per bigha subject to payment of 100% land value as premium." * Mr. Soli J. Sorabjee, the learned Attorney-General appearing for the respondents, has contended that there is nothing illegal in the order sought to be reviewed, therefore, the review petitions are liable to be dismissed; no arguments based on Exts. 6, 7 and 8 were addressed before the High Court nor was any ground taken in the memorandum of appeal in respect of the said documents, therefore, on the ground of non-consideration of those documents no review application could be maintained.In the written submissions in the affidavit filed by the Director of Land, Requisition, Acquisition and Reforms, Assam, Guwahati, filed on behalf of the first respondent, para 5 reads thus :"It is submitted that, the mutually agreed valuation of Rs. 55, 000 per bigha by ONGC at Sibsagar District, as stated by the petitioners has been discontinued since 1-1-1993. The Government decision to this effect, as derived in a meeting on 19-9-1994 is enclosed herewith." * The law in regard to review of an order of this Court is too well settled to justify an elaborate discussion on the point. Suffice it to observe that the finality of the order of the apex court of the country should not lightly be unsettled. A review of a judgment, observed Krishna Iyer, J. in Sow Chandra Kanta v. Sheik Habib (1975 SC 627 : 1975 AIR(SC) 1500 : 1975 SC 627 : 1975 SCC(Tax) 2001) : "May be, we were not right in refusing special leave. ... A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility." * Now adverting to Review Petitions Nos. 306-08 of 2000, we find that they are devoid of any merit. It is noted above that the petitioner having earlier challenged the common judgment of the High Court dated 24-6-1998 in Special Leave Petitions (C) Nos. 18020-22 of 1998 withdrew the same with liberty to pursue Review Application No. 54 of 1998 filed in the High Court. Having lost in the High Court he again sought leave to appeal against the very same common judgment of the High Court by filing Special Leave Petitions (C) Nos. 18180-82 of 1999 which were dismissed by this Court on 1-12-1999. Having withdrawn earlier SLPs Nos. 18020-22 of 1998, he could not have been allowed to maintain SLPs Nos. 18180-82 of 1999. He cannot, in the guise of the review petitions, be permitted to revive the incompetent special leave petitions. We are not persuaded to accept the contention that the order of this Court dated 1-12-1999 suffers from any error much less an error on the face of the record; there is absolutely no merit in the review petitions.
### Response:
0
### Explanation:
The law in regard to review of an order of this Court is too well settled to justify an elaborate discussion on the point. Suffice it to observe that the finality of the order of the apex court of the country should not lightly beadverting to Review Petitions Nos.of 2000, we find that they are devoid of any merit. It is noted above that the petitioner having earlier challenged the common judgment of the High Court datedin Special Leave Petitions (C) Nos.of 1998 withdrew the same with liberty to pursue Review Application No. 54 of 1998 filed in the High Court. Having lost in the High Court he again sought leave to appeal against the very same common judgment of the High Court by filing Special Leave Petitions (C) Nos.of 1999 which were dismissed by this Court onHaving withdrawn earlier SLPs Nos.of 1998, he could not have been allowed to maintain SLPs Nos.of 1999. He cannot, in the guise of the review petitions, be permitted to revive the incompetent special leave petitions. We are not persuaded to accept the contention that the order of this Court datedsuffers from any error much less an error on the face of the record; there is absolutely no merit in the review petitions.
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Union Co-Operative Insurance Society Ltd.,Bombay Vs. Commissioner Of Income-Tax, Bombay | loss appropriation account submitted in Form C. In our judgment that view cannot be sustained. In Form B expenditure which is already incurred or which is capable of being actually ascertained at the close of the year may be included. But the insurer who has incurred a liability may allocate (subject to adjustment in the balance-sheet) an estimated amount out of the profit and loss account and enter it in the profit and loss appropriation account. The Controller of Insurance may, if he is not satisfied with the correctness of the estimate or the allocation, refuse to accept it, and may call upon the insurer to rectify the accounts. If the Controller certifies the accounts, the expenditure cannot be disallowed by the Income-tax Officer, merely because it is not entered in the profit and loss account and is found appropriated in the profit and loss appropriation account. Rule 6 of the Schedule to the Income-tax Act enjoins the Income-tax Officer to take the balance disclosed by the annual accounts as the profits and gains of insurance business other than life insurance; does not oblige him to accept the figure disclosed at the foot of the profit and loss account as determinative of the quantum of profits and gains of that insurance business. Section 15 requires the insurer to submit not merely the profit and loss account in Form B, but also the balance-sheet and the account in Form C and other accounts, and there is no warrant for the view that the balance of profits disclosed by the annual account must be equated with the balance of profits disclosed in Form B. 7. The other plea which appealed to the High Court that the assessee Company had itself not treated the bonus paid as an expenditure related to the business, but only as disbursements made out of the profit after it had accrued to the assessee Company, also cannot be sustained. The assessee Company maintains its accounts according to the mercantile system. It chose to estimate the liability arising under Bye-law 52 in respect of the business transacted by it, and debited it in the profit and loss appropriation account. By adopting that method of accounting the assessee Company did not seek to alter the character of the expenditure. If it had been debited in the profit and loss account it could not with any show of reason be regarded as not incidental to the business of the assessee Company. Merely because it was debited as an estimated amount, an intention not to treat it as expenditure for the purpose of the business is not indicated.In our judgment, it was open to the assessee Company to debit in his annual accounts a certain outgoing actual or estimated, and if sanctioned by the Controller to claim that amount or such other amount as the Income-tax Officer may under Section 10 (2) allow as a permissible deduction. 8. The High Court did not express any view on the question whether the expenditure was a permissible allowance under Section 10 (2) (xv) of the Income-tax Act. It appears from the scheme for payment of bonus to the policy-holders who renew their policies that bonus would be admissible if there was no claim on the policy and the renewal policy was issued during the year for which bonus was declared. This scheme was evolved to induce the policy-holders to renew their policies with the assessee Company. Even if no immediate benefit results therefrom to the trade of the insurer, the scheme is clearly intended to advance the business of the insurer, and payment to renewing policy-holders or adjustment of bonus against renewal premium made under that scheme constitutes expenditure laid out wholly and exclusively for the purpose of the business of the assessee Company. 9. Counsel for the Commissioner contended that the estimated liability was not "crystallised liability" and was on that account inadmissible as an allowance in the computation of taxable income. The liability, submitted counsel, was a mere contingent liability which could not amount to expenditure within the meaning of Section 10 (2) (xv), nor a permissible outgoing in the determination of the income, profits or gains of the business. This question apparently was not raised before the Tribunal. Assuming that it could be raised before the High Court and this Court, we are of the view that under the scheme of Bye-law 52, the liability is not a contingent liability. So long as the year of risk has not expired, the liability is contingent: but once the year of risk is over, and the policy is renewed the liability becomes actual and concrete. The assessee Company has not claimed the full amount for which an estimate was made in the accounts submitted to the Controller of Insurance, but only those amounts which were entered in the balance-sheet as actually paid. This expenditure cannot be said to be contingent. 10. It was finally said that under Section 41 of the Insurance Act there is prohibition against the grant of any rebate alia it is urged that no insurer can in the course of assessment proceedings claim deduction in respect of the amounts allowed by him by way of rebate when grant of rebate is expressly prohibited by statute. Section 41 (1) of the Insurance Act prohibits the allowance or offer of allowance either directly or indirectly as an inducement to any person to take out or renew or continue an insurance in respect of any kind of risk relating to lives or property in India. But the question whether grant of bonus is a rebate within the meaning of Section 41 was never raised before the Tribunal. This Court will not be justified in entering upon an investigation whether payment of bonus was in the nature of rebate and on that account offended Section 41 of the Insurance Act. 11. The answer recorded by the High Court will be discharged and an answer in the affirmative be recorded on the question submitted. | 1[ds]Section 41 (1) of the Insurance Act prohibits the allowance or offer of allowance either directly or indirectly as an inducement to any person to take out or renew or continue an insurance in respect of any kind of risk relating to lives or property in India. But the question whether grant of bonus is a rebate within the meaning of Section 41 was never raised before the Tribunal. This Court will not be justified in entering upon an investigation whether payment of bonus was in the nature of rebate and on that account offended Section 41 of the Insurance Act11. The answer recorded by the High Court will be discharged and an answer in the affirmative be recorded on the question submitted7. The other plea which appealed to the High Court that the assessee Company had itself not treated the bonus paid as an expenditure related to the business, but only as disbursements made out of the profit after it had accrued to the assessee Company, also cannot be sustained. The assessee Company maintains its accounts according to the mercantile system. It chose to estimate the liability arising underw 52 in respect of the business transacted by it, and debited it in the profit and loss appropriation account. By adopting that method of accounting the assessee Company did not seek to alter the character of the expenditure. If it had been debited in the profit and loss account it could not with any show of reason be regarded as not incidental to the business of the assessee Company. Merely because it was debited as an estimated amount, an intention not to treat it as expenditure for the purpose of the business is not indicated.In our judgment, it was open to the assessee Company to debit in his annual accounts a certain outgoing actual or estimated, and if sanctioned by the Controller to claim that amount or such other amount as thex Officer may under Section 10 (2) allow as a permissible deductionAssuming that it could be raised before the High Court and this Court, we are of the view that under the scheme ofw 52, the liability is not a contingent liability. So long as the year of risk has not expired, the liability is contingent: but once the year of risk is over, and the policy is renewed the liability becomes actual and concrete. The assessee Company has not claimed the full amount for which an estimate was made in the accounts submitted to the Controller of Insurance, but only those amounts which were entered in thet as actually paid. This expenditure cannot be said to be contingent. | 1 | 2,572 | 475 | ### Instruction:
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loss appropriation account submitted in Form C. In our judgment that view cannot be sustained. In Form B expenditure which is already incurred or which is capable of being actually ascertained at the close of the year may be included. But the insurer who has incurred a liability may allocate (subject to adjustment in the balance-sheet) an estimated amount out of the profit and loss account and enter it in the profit and loss appropriation account. The Controller of Insurance may, if he is not satisfied with the correctness of the estimate or the allocation, refuse to accept it, and may call upon the insurer to rectify the accounts. If the Controller certifies the accounts, the expenditure cannot be disallowed by the Income-tax Officer, merely because it is not entered in the profit and loss account and is found appropriated in the profit and loss appropriation account. Rule 6 of the Schedule to the Income-tax Act enjoins the Income-tax Officer to take the balance disclosed by the annual accounts as the profits and gains of insurance business other than life insurance; does not oblige him to accept the figure disclosed at the foot of the profit and loss account as determinative of the quantum of profits and gains of that insurance business. Section 15 requires the insurer to submit not merely the profit and loss account in Form B, but also the balance-sheet and the account in Form C and other accounts, and there is no warrant for the view that the balance of profits disclosed by the annual account must be equated with the balance of profits disclosed in Form B. 7. The other plea which appealed to the High Court that the assessee Company had itself not treated the bonus paid as an expenditure related to the business, but only as disbursements made out of the profit after it had accrued to the assessee Company, also cannot be sustained. The assessee Company maintains its accounts according to the mercantile system. It chose to estimate the liability arising under Bye-law 52 in respect of the business transacted by it, and debited it in the profit and loss appropriation account. By adopting that method of accounting the assessee Company did not seek to alter the character of the expenditure. If it had been debited in the profit and loss account it could not with any show of reason be regarded as not incidental to the business of the assessee Company. Merely because it was debited as an estimated amount, an intention not to treat it as expenditure for the purpose of the business is not indicated.In our judgment, it was open to the assessee Company to debit in his annual accounts a certain outgoing actual or estimated, and if sanctioned by the Controller to claim that amount or such other amount as the Income-tax Officer may under Section 10 (2) allow as a permissible deduction. 8. The High Court did not express any view on the question whether the expenditure was a permissible allowance under Section 10 (2) (xv) of the Income-tax Act. It appears from the scheme for payment of bonus to the policy-holders who renew their policies that bonus would be admissible if there was no claim on the policy and the renewal policy was issued during the year for which bonus was declared. This scheme was evolved to induce the policy-holders to renew their policies with the assessee Company. Even if no immediate benefit results therefrom to the trade of the insurer, the scheme is clearly intended to advance the business of the insurer, and payment to renewing policy-holders or adjustment of bonus against renewal premium made under that scheme constitutes expenditure laid out wholly and exclusively for the purpose of the business of the assessee Company. 9. Counsel for the Commissioner contended that the estimated liability was not "crystallised liability" and was on that account inadmissible as an allowance in the computation of taxable income. The liability, submitted counsel, was a mere contingent liability which could not amount to expenditure within the meaning of Section 10 (2) (xv), nor a permissible outgoing in the determination of the income, profits or gains of the business. This question apparently was not raised before the Tribunal. Assuming that it could be raised before the High Court and this Court, we are of the view that under the scheme of Bye-law 52, the liability is not a contingent liability. So long as the year of risk has not expired, the liability is contingent: but once the year of risk is over, and the policy is renewed the liability becomes actual and concrete. The assessee Company has not claimed the full amount for which an estimate was made in the accounts submitted to the Controller of Insurance, but only those amounts which were entered in the balance-sheet as actually paid. This expenditure cannot be said to be contingent. 10. It was finally said that under Section 41 of the Insurance Act there is prohibition against the grant of any rebate alia it is urged that no insurer can in the course of assessment proceedings claim deduction in respect of the amounts allowed by him by way of rebate when grant of rebate is expressly prohibited by statute. Section 41 (1) of the Insurance Act prohibits the allowance or offer of allowance either directly or indirectly as an inducement to any person to take out or renew or continue an insurance in respect of any kind of risk relating to lives or property in India. But the question whether grant of bonus is a rebate within the meaning of Section 41 was never raised before the Tribunal. This Court will not be justified in entering upon an investigation whether payment of bonus was in the nature of rebate and on that account offended Section 41 of the Insurance Act. 11. The answer recorded by the High Court will be discharged and an answer in the affirmative be recorded on the question submitted.
### Response:
1
### Explanation:
Section 41 (1) of the Insurance Act prohibits the allowance or offer of allowance either directly or indirectly as an inducement to any person to take out or renew or continue an insurance in respect of any kind of risk relating to lives or property in India. But the question whether grant of bonus is a rebate within the meaning of Section 41 was never raised before the Tribunal. This Court will not be justified in entering upon an investigation whether payment of bonus was in the nature of rebate and on that account offended Section 41 of the Insurance Act11. The answer recorded by the High Court will be discharged and an answer in the affirmative be recorded on the question submitted7. The other plea which appealed to the High Court that the assessee Company had itself not treated the bonus paid as an expenditure related to the business, but only as disbursements made out of the profit after it had accrued to the assessee Company, also cannot be sustained. The assessee Company maintains its accounts according to the mercantile system. It chose to estimate the liability arising underw 52 in respect of the business transacted by it, and debited it in the profit and loss appropriation account. By adopting that method of accounting the assessee Company did not seek to alter the character of the expenditure. If it had been debited in the profit and loss account it could not with any show of reason be regarded as not incidental to the business of the assessee Company. Merely because it was debited as an estimated amount, an intention not to treat it as expenditure for the purpose of the business is not indicated.In our judgment, it was open to the assessee Company to debit in his annual accounts a certain outgoing actual or estimated, and if sanctioned by the Controller to claim that amount or such other amount as thex Officer may under Section 10 (2) allow as a permissible deductionAssuming that it could be raised before the High Court and this Court, we are of the view that under the scheme ofw 52, the liability is not a contingent liability. So long as the year of risk has not expired, the liability is contingent: but once the year of risk is over, and the policy is renewed the liability becomes actual and concrete. The assessee Company has not claimed the full amount for which an estimate was made in the accounts submitted to the Controller of Insurance, but only those amounts which were entered in thet as actually paid. This expenditure cannot be said to be contingent.
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Yeshwantrao Laxmanrao Ghatge & Anr Vs. Baburao Bala Yadav And Ors | in Section 28 of the Limitation Act, 1908. But then the overriding effect of Section 52A will have its play and operation, only if, by the time it came into force, Section 28 had not extinguished the right to the property in question. Otherwise not. In Mahanti Biseshwar Dass v. Sashinath Jha (AIR 1943 Pat 289 : 22 Pat 133 : 208 IC 129) a Bench of the Patna High Court pointed out that where the right of the plaintiff had become barred by limitation before the amending Act of 1929 was passed the mere institution of the suit after 1929 cannot have the effect of reviving that right. By the Amending Act of 1929 in Section 10 of the Limitation Act it was provided that no suit instituted against a person in whom property had become vested in trust for any specific purpose or against his legal representatives or assigns for the purposes mentioned in the section would be barred by any length of time. From the category of assigns, assigns for valuable consideration were left out. The question before the Patna High Court in the case referred to above was whether the amendment brought about in the year 1929 could revive a right which was extinguished, dead and gone prior to 1929. In that connection the answer given was in the negative. The view so expressed in the Patna decision is perfectly sound and correct, and no decision to the contrary was brought to our notice. Under Section 52A of the Bombay Act even assignees for a valuable consideration have been roped in to save the suit from the bar of any period of limitation. But then on an application of the principle referred to above it is plain that Section 52A could not have the effect of reviving an extinguished right.8. In Mst. Allah Rakhi v. Shah Mohammad Abdur Rahim (AIR 1934 PC 77 : 61 IA 50 : 66 MLJ 431) Sir Lord Lancelot Sanderson delivering the judgment on behalf of the Board ruled that in regard to a suit brought on January 29, 1826 "the question whether it was then barred by limitation must depend upon the law of limitation which was applicable to the suit at that time". The provisions of the Amendment Act of 1929 which had come into force on January 1, 1929 were held to be inapplicable. Of Course, even in the light of the old section it was held that the suit was not barred by limitation and the decree of the High Court was affirmed. Krishnan, J. in the case of Balram Chunnilal v. Durgalal Shivnarain (AIR 1968 MP 81 : 1967 MP LJ 384) expressed a view identical to the one expressed by the Patna High Court (vide end of paragraph 36, page 86, column 1).9. Mr. Datar placed reliance upon the decision of the Bombay High Court in Dev Chavta v. Ganesh Mahadeo Deshpande (AIR 1970 Bom 412 : 72 Bom LR 469) in order to take advantage of Section 52A of the Act. The ratio of the case has to be appreciated in the background of the facts found therein. The principles of law as enunciated cannot be fully and squarely applied. But yet the decision, if we may say so with respect, is correct. This would be on the footing that the decision given by the Assistant Charity Commissioner under Section 79 read with Section 80 of the Act was conclusive and final. He had exclusive jurisdiction to decide the question as to whether the suit land belonged to the trust. He had so decided it on November 5, 1954. The suit was filed on July 21, 1955. In that view, the High Court was right in holding that a suit filed under Section 50 of the Act was not barred under Section 52A because the decision of the Assistant Charity Commissioner given in 1954 had declared the property to be a trust property and which decision was final.10. For the reasons stated above, it is clear that the appellants could not take advantage of Section 52A of the Act in respect of the properties at 1A to 1D and 1F to 1G. Argument put forward by Mr. Datar to show that the claim was not barred in the year 1955 when Section 52A came into force was absolutely devoid of any substance. It was against the stand taken in the High Court and does not merit any detailed discussion in our judgment.11. Coming to property at 1E now, we must confess at the outset that during the course of argument at one time, we thought that this property having been sold in the year 1947 by plaintiff 1, the right to the property was not extinguished under Section 28 of the Limitation Act in the year 1955. Therefore, although the suit was instituted in the year 1961, beyond 12 years of 1947, it would perhaps be saved under Section 52A from the bar of limitation. But on a closer scrutiny and on appreciation of the argument of the other side in the light of the finding recorded by the High Court, we did not feel persuaded to give relief to the appellants even in regard to property at 1E. The High Court has found that plaintiff 1 had acquired title to property 1E by adverse possession long before 1947. He dealt with this property as his own. Even when the trust was declared as a Public Trust by the Charity Commissioner in or about the year 1954, the property at 1E was not shown as a trust property. The sale, therefore, in the year 1947 by plaintiff 1 conveyed a good title to the purchaser. The lost right to this property long before 1947 could not be saved and revived in the Year 1955 or 1961 by Section 52A of the Act. We, therefore, hold in agreement with the High Court that the suit was barred by limitation in regard to this property also.12. | 0[ds]5. In our judgment, there is no substance in any of the points urged on behalf of the appellants. The possession of the purchasers was adverse in respect of all the properties at 1A to 1D and 1F to 1H from the very beginning. By such adverse possession those who had come in possession of these properties had acquired an indefeasible title under the Indian Limitation Act, 1908. It is not necessary to decide in this case as to which of the articles in the first Schedule of the said Limitation Act applied to this case. Whether it was articles 134, 134A, 134B, 142 or 144 the claim had become barred long, long before the year 1955. The effect of Section 28 of the Limitation Act was that right to the property was extinguished resulting in conferment of a title by adverse possession on the persons in possession of the concerned properties. It is well-known that the effect of Section 28 of the Limitation Act is not only to bar the remedy but also extinguish the right. The right to the property itself was dead and gone. It could not be revived by a provision like the one contained in Section 52A of theis well-established proposition of law that the law of limitation fixing a period of limitation for the initiation of any suit or proceeding is a procedural law and not a substantive one. Section 52A had, by no stretch of imagination, the effect of reviving an extinguished and lost claim and giving life to a dead horse. If the claim was not barred and the right to the property was not extinguished when Section 52A came into force, then a suit instituted thereafter could not be defeated under any of the articles of the Limitation Act of 1908 or even of the new Limitation Act of 1963. In express terms it overrides the provisions of the Limitation Act including the provision in Section 28 of the Limitation Act, 1908. But then the overriding effect of Section 52A will have its play and operation, only if, by the time it came into force, Section 28 had not extinguished the right to the property in question. Otherwise not. In Mahanti Biseshwar Dass v. Sashinath Jha (AIR 1943 Pat 289 : 22 Pat 133 : 208 IC 129) a Bench of the Patna High Court pointed out that where the right of the plaintiff had become barred by limitation before the amending Act of 1929 was passed the mere institution of the suit after 1929 cannot have the effect of reviving that right. By the Amending Act of 1929 in Section 10 of the Limitation Act it was provided that no suit instituted against a person in whom property had become vested in trust for any specific purpose or against his legal representatives or assigns for the purposes mentioned in the section would be barred by any length of time. From the category of assigns, assigns for valuable consideration were left out. The question before the Patna High Court in the case referred to above was whether the amendment brought about in the year 1929 could revive a right which was extinguished, dead and gone prior to 1929. In that connection the answer given was in the negative. The view so expressed in the Patna decision is perfectly sound and correct, and no decision to the contrary was brought to our notice. Under Section 52A of the Bombay Act even assignees for a valuable consideration have been roped in to save the suit from the bar of any period of limitation. But then on an application of the principle referred to above it is plain that Section 52A could not have the effect of reviving an extinguished right.In Mst. Allah Rakhi v. Shah Mohammad Abdur Rahim (AIR 1934 PC 77 : 61 IA 50 : 66 MLJ 431) Sir Lord Lancelot Sanderson delivering the judgment on behalf of the Board ruled that in regard to a suit brought on January 29, 1826 "the question whether it was then barred by limitation must depend upon the law of limitation which was applicable to the suit at that time". The provisions of the Amendment Act of 1929 which had come into force on January 1, 1929 were held to be inapplicable. Of Course, even in the light of the old section it was held that the suit was not barred by limitation and the decree of the High Court was affirmed. Krishnan, J. in the case of Balram Chunnilal v. Durgalal Shivnarain (AIR 1968 MP 81 : 1967 MP LJ 384) expressed a view identical to the one expressed by the Patna High Court (vide end of paragraph 36, page 86, column 1).For the reasons stated above, it is clear that the appellants could not take advantage of Section 52A of the Act in respect of the properties at 1A to 1D and 1F to 1G. Argument put forward by Mr. Datar to show that the claim was not barred in the year 1955 when Section 52A came into force was absolutely devoid of any substance. It was against the stand taken in the High Court and does not merit any detailed discussion in our judgment.Coming to property at 1E now, we must confess at the outset that during the course of argument at one time, we thought that this property having been sold in the year 1947 by plaintiff 1, the right to the property was not extinguished under Section 28 of the Limitation Act in the year 1955. Therefore, although the suit was instituted in the year 1961, beyond 12 years of 1947, it would perhaps be saved under Section 52A from the bar of limitation. But on a closer scrutiny and on appreciation of the argument of the other side in the light of the finding recorded by the High Court, we did not feel persuaded to give relief to the appellants even in regard to property at 1E. The High Court has found that plaintiff 1 had acquired title to property 1E by adverse possession long before 1947. He dealt with this property as his own. Even when the trust was declared as a Public Trust by the Charity Commissioner in or about the year 1954, the property at 1E was not shown as a trust property. The sale, therefore, in the year 1947 by plaintiff 1 conveyed a good title to the purchaser. The lost right to this property long before 1947 could not be saved and revived in the Year 1955 or 1961 by Section 52A of the Act. We, therefore, hold in agreement with the High Court that the suit was barred by limitation in regard to this property also. | 0 | 2,458 | 1,212 | ### Instruction:
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in Section 28 of the Limitation Act, 1908. But then the overriding effect of Section 52A will have its play and operation, only if, by the time it came into force, Section 28 had not extinguished the right to the property in question. Otherwise not. In Mahanti Biseshwar Dass v. Sashinath Jha (AIR 1943 Pat 289 : 22 Pat 133 : 208 IC 129) a Bench of the Patna High Court pointed out that where the right of the plaintiff had become barred by limitation before the amending Act of 1929 was passed the mere institution of the suit after 1929 cannot have the effect of reviving that right. By the Amending Act of 1929 in Section 10 of the Limitation Act it was provided that no suit instituted against a person in whom property had become vested in trust for any specific purpose or against his legal representatives or assigns for the purposes mentioned in the section would be barred by any length of time. From the category of assigns, assigns for valuable consideration were left out. The question before the Patna High Court in the case referred to above was whether the amendment brought about in the year 1929 could revive a right which was extinguished, dead and gone prior to 1929. In that connection the answer given was in the negative. The view so expressed in the Patna decision is perfectly sound and correct, and no decision to the contrary was brought to our notice. Under Section 52A of the Bombay Act even assignees for a valuable consideration have been roped in to save the suit from the bar of any period of limitation. But then on an application of the principle referred to above it is plain that Section 52A could not have the effect of reviving an extinguished right.8. In Mst. Allah Rakhi v. Shah Mohammad Abdur Rahim (AIR 1934 PC 77 : 61 IA 50 : 66 MLJ 431) Sir Lord Lancelot Sanderson delivering the judgment on behalf of the Board ruled that in regard to a suit brought on January 29, 1826 "the question whether it was then barred by limitation must depend upon the law of limitation which was applicable to the suit at that time". The provisions of the Amendment Act of 1929 which had come into force on January 1, 1929 were held to be inapplicable. Of Course, even in the light of the old section it was held that the suit was not barred by limitation and the decree of the High Court was affirmed. Krishnan, J. in the case of Balram Chunnilal v. Durgalal Shivnarain (AIR 1968 MP 81 : 1967 MP LJ 384) expressed a view identical to the one expressed by the Patna High Court (vide end of paragraph 36, page 86, column 1).9. Mr. Datar placed reliance upon the decision of the Bombay High Court in Dev Chavta v. Ganesh Mahadeo Deshpande (AIR 1970 Bom 412 : 72 Bom LR 469) in order to take advantage of Section 52A of the Act. The ratio of the case has to be appreciated in the background of the facts found therein. The principles of law as enunciated cannot be fully and squarely applied. But yet the decision, if we may say so with respect, is correct. This would be on the footing that the decision given by the Assistant Charity Commissioner under Section 79 read with Section 80 of the Act was conclusive and final. He had exclusive jurisdiction to decide the question as to whether the suit land belonged to the trust. He had so decided it on November 5, 1954. The suit was filed on July 21, 1955. In that view, the High Court was right in holding that a suit filed under Section 50 of the Act was not barred under Section 52A because the decision of the Assistant Charity Commissioner given in 1954 had declared the property to be a trust property and which decision was final.10. For the reasons stated above, it is clear that the appellants could not take advantage of Section 52A of the Act in respect of the properties at 1A to 1D and 1F to 1G. Argument put forward by Mr. Datar to show that the claim was not barred in the year 1955 when Section 52A came into force was absolutely devoid of any substance. It was against the stand taken in the High Court and does not merit any detailed discussion in our judgment.11. Coming to property at 1E now, we must confess at the outset that during the course of argument at one time, we thought that this property having been sold in the year 1947 by plaintiff 1, the right to the property was not extinguished under Section 28 of the Limitation Act in the year 1955. Therefore, although the suit was instituted in the year 1961, beyond 12 years of 1947, it would perhaps be saved under Section 52A from the bar of limitation. But on a closer scrutiny and on appreciation of the argument of the other side in the light of the finding recorded by the High Court, we did not feel persuaded to give relief to the appellants even in regard to property at 1E. The High Court has found that plaintiff 1 had acquired title to property 1E by adverse possession long before 1947. He dealt with this property as his own. Even when the trust was declared as a Public Trust by the Charity Commissioner in or about the year 1954, the property at 1E was not shown as a trust property. The sale, therefore, in the year 1947 by plaintiff 1 conveyed a good title to the purchaser. The lost right to this property long before 1947 could not be saved and revived in the Year 1955 or 1961 by Section 52A of the Act. We, therefore, hold in agreement with the High Court that the suit was barred by limitation in regard to this property also.12.
### Response:
0
### Explanation:
right to the property was extinguished resulting in conferment of a title by adverse possession on the persons in possession of the concerned properties. It is well-known that the effect of Section 28 of the Limitation Act is not only to bar the remedy but also extinguish the right. The right to the property itself was dead and gone. It could not be revived by a provision like the one contained in Section 52A of theis well-established proposition of law that the law of limitation fixing a period of limitation for the initiation of any suit or proceeding is a procedural law and not a substantive one. Section 52A had, by no stretch of imagination, the effect of reviving an extinguished and lost claim and giving life to a dead horse. If the claim was not barred and the right to the property was not extinguished when Section 52A came into force, then a suit instituted thereafter could not be defeated under any of the articles of the Limitation Act of 1908 or even of the new Limitation Act of 1963. In express terms it overrides the provisions of the Limitation Act including the provision in Section 28 of the Limitation Act, 1908. But then the overriding effect of Section 52A will have its play and operation, only if, by the time it came into force, Section 28 had not extinguished the right to the property in question. Otherwise not. In Mahanti Biseshwar Dass v. Sashinath Jha (AIR 1943 Pat 289 : 22 Pat 133 : 208 IC 129) a Bench of the Patna High Court pointed out that where the right of the plaintiff had become barred by limitation before the amending Act of 1929 was passed the mere institution of the suit after 1929 cannot have the effect of reviving that right. By the Amending Act of 1929 in Section 10 of the Limitation Act it was provided that no suit instituted against a person in whom property had become vested in trust for any specific purpose or against his legal representatives or assigns for the purposes mentioned in the section would be barred by any length of time. From the category of assigns, assigns for valuable consideration were left out. The question before the Patna High Court in the case referred to above was whether the amendment brought about in the year 1929 could revive a right which was extinguished, dead and gone prior to 1929. In that connection the answer given was in the negative. The view so expressed in the Patna decision is perfectly sound and correct, and no decision to the contrary was brought to our notice. Under Section 52A of the Bombay Act even assignees for a valuable consideration have been roped in to save the suit from the bar of any period of limitation. But then on an application of the principle referred to above it is plain that Section 52A could not have the effect of reviving an extinguished right.In Mst. Allah Rakhi v. Shah Mohammad Abdur Rahim (AIR 1934 PC 77 : 61 IA 50 : 66 MLJ 431) Sir Lord Lancelot Sanderson delivering the judgment on behalf of the Board ruled that in regard to a suit brought on January 29, 1826 "the question whether it was then barred by limitation must depend upon the law of limitation which was applicable to the suit at that time". The provisions of the Amendment Act of 1929 which had come into force on January 1, 1929 were held to be inapplicable. Of Course, even in the light of the old section it was held that the suit was not barred by limitation and the decree of the High Court was affirmed. Krishnan, J. in the case of Balram Chunnilal v. Durgalal Shivnarain (AIR 1968 MP 81 : 1967 MP LJ 384) expressed a view identical to the one expressed by the Patna High Court (vide end of paragraph 36, page 86, column 1).For the reasons stated above, it is clear that the appellants could not take advantage of Section 52A of the Act in respect of the properties at 1A to 1D and 1F to 1G. Argument put forward by Mr. Datar to show that the claim was not barred in the year 1955 when Section 52A came into force was absolutely devoid of any substance. It was against the stand taken in the High Court and does not merit any detailed discussion in our judgment.Coming to property at 1E now, we must confess at the outset that during the course of argument at one time, we thought that this property having been sold in the year 1947 by plaintiff 1, the right to the property was not extinguished under Section 28 of the Limitation Act in the year 1955. Therefore, although the suit was instituted in the year 1961, beyond 12 years of 1947, it would perhaps be saved under Section 52A from the bar of limitation. But on a closer scrutiny and on appreciation of the argument of the other side in the light of the finding recorded by the High Court, we did not feel persuaded to give relief to the appellants even in regard to property at 1E. The High Court has found that plaintiff 1 had acquired title to property 1E by adverse possession long before 1947. He dealt with this property as his own. Even when the trust was declared as a Public Trust by the Charity Commissioner in or about the year 1954, the property at 1E was not shown as a trust property. The sale, therefore, in the year 1947 by plaintiff 1 conveyed a good title to the purchaser. The lost right to this property long before 1947 could not be saved and revived in the Year 1955 or 1961 by Section 52A of the Act. We, therefore, hold in agreement with the High Court that the suit was barred by limitation in regard to this property also.
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Ramesh Narang Vs. Rama Narang | of the Companies Act cannot be visited upon respondent No. 1. We are unable to find any merit in this submission for more than one reason. In the first instance, we do not read the order of Delhi High Court as suspending the order of conviction and, secondly, even assuming it to be so, in our judgment, the Delhi High Court had no power to suspend the order of conviction. In any event, while determining whether respondent No. 1 is disqualified to hold the post of Managing Director under section 267 of the Companies Act, it is entirely immaterial what Delhi High Court contemplated while passing such order. The consequences flowing from the provisions of section 267 of the Companies Act do not depend upon the passing of the order by Delhi High Court. The right of respondent No. 1 to hold the post of Managing Director comes to an end the moment the order of conviction is recorded. Mr. Cooper then urged that the appellant had earlier filed Company Petition No. 681 of 1990 in this Court to challenge the appointment of respondent No. 1 as Managing Director on the ground of conviction recorded by Additional Sessions Judge but subsequently that petition was withdrawn. Identical grievance made in Petition No. 10 of 1991 filed before the Company Law Board ended in consent terms filed by the parties and where the appellant accepted that respondent No. 1 can validly hold the post of Managing Director inspite of conviction. Mr. Cooper submitted that in view of the conduct of the appellant in filing consent terms before the Company Law Board, it is not open for the appellant now to claim that respondent No. 1 ceases to be Managing Director because of conviction. The submission was countered by Mr. Sibal by urging that the doctrine of estoppel cannot be attracted when there is violation of the statutory provision. The submission is correct and the respondent No. 1 cannot avoid the consequences of the provisions of section 267 of the Companies Act merely because the parties had earlier filed consent terms. It is necessary to note that the provisions of the Companies Act are enacted by taking into consideration the public interest and not only the interest of the shareholders or the Directors of the company. It was also urged that the order passed by the learned Single Judge on notice of motion taken out by respondent Nos. 1 to 3 is at the interlocutory stage and should not be disturbed in appeal. We are unable to accede to the submission because even at the interlocutory stage the matter was extensively debated and the decision which affects not only the shareholders but the public at large cannot be permitted to operate when found erroneous.( 14 ) FINALLY, Mr. Cooper urged that respondent Nos. 1 to 3 had not specifically asked for any final relief in the suit in regard to the interim injunction sought against the appellant and respondent No. 5 restraining them from obstructing or interfering with the respondent No. 1s functioning as Chairman and Managing Director of the Company. Mr. Cooper submitted that the issue as to whether the respondent No. 1 can function as Chairman and Managing Director does not arise on the strength of the averments made in the plaint and, consequently, it was not necessary for the trial Judge to examine the same. The submission is obviously one of desperation and cannot be accepted. In the first instance, the pleadings in paragraph 22 of the plaint clearly indicate that respondent No. 1 was keen to secure a declaration that he is entitled to function as Chairman and Managing Director of the company. Secondly, in case the issue does not arise on the basis of averments in the plaint, then respondent No. 1 need not have sought interim relief of injunction restraining the appellant and respondent No. 5 from obstructing respondent No. 1 in functioning as Chairman and Managing Director of the company. The mere perusal of prayer (b) of the plaint and prayer (b) of the notice of motion leaves no manner of doubt that respondent No. 1 was more keen to secure a declaration of his status to function as Managing Director of the company. It also cannot be overlooked that it is futile for respondent No. 1 now to claim that the issue as to whether respondent No. 1 is entitled to function as Managing Director does not arise when the respondent No. 1 argued the matter extensively before the learned Single Judge and the learned Single Judge framed specific point for determination on this aspect. A perusal of the prayers in the plaint leaves no manner of doubt that respondent No. 1 was keen to secure a declaration of his legal status as Chairman and Managing Director of the company and, therefore, it is too late in the date now to claim that the learned Single Judge should not have examined the issue. Mr. Cooper also urged that prayer (e) in the plaint should be read as seeking an injunction restraining the appellant from obstructing or interfering with the functioning of respondent No. 1 as Chairman and Managing Director of the company in pursuance of the resolution alleged to have been passed on July 13, 1992. Again, the submission is one of desperation because such is not the object of making the prayer in the plaint nor in the motion and such a relief was already covered by prayer (d) of the plaint and prayer (a) of the notice of motion. In our judgment, the respondent No. 1 now cannot avoid the consequences of the decision which was invited in the trial Court. In our judgment, the learned Single Judge was in error in granting relief in terms of prayer (b) of the notice of motion. As the relief granted in terms of prayer (a) of the notice of motion is not challenged by the appellant as mentioned hereinabove, the same need not be disturbed. | 1[ds]It is not possible to accede to the contention of Mr. Sibal that the relief in terms of prayer (a) cannot be granted, once the relief in terms of prayer (b) is set aside. We are unable to find any merit in the contention that the suit will not be maintainable in case respondent No. 1 was not entitled to be appointed and continued as Managing Director and Chairman of the Company. The suit is not instituted only by respondent No. 1 but by the company and one more Director. Even assuming that respondent No. 1 is not entitled to prosecute the suit as Director or Managing Director, still we are unable to appreciate how the suit will not be maintainable because the respondent No. 1 is a shareholder of the company and can certainly proceed with the suit and challenge the validity of the meeting alleged to have been held by appellant on July 13, 1992. It is, therefore, not possible to accede to the contention that in case prayer (b) cannot be granted, then prayer (a) should also be denied.( 8 ) THE principal contention in this appeal, and which was also vehemently argued before the learned Single Judge, was in respect of capacity of respondent No. 1 to be appointed as Director and Managing Director of the company after recording of conviction by Additional Sessions Judge, Delhi. The fact that the respondent No. 1 was convicted by order dated December 22, 1986 and sentenced to undergo rigorous imprisonment for 21/2 years for an offence punishable under section 420 read with section 114 and sectionof the Indian Penal Code is not in dispute. It is equally not in dispute that respondent No. 1 was convicted of offences involving moral turpitude. The appointment of respondent No. 1 after amalgamation of the two companies as Director and Managing Director were made on September 21, 1988 and June 25, 1990. It is not in dispute that respondent No. 1 was appointed as Director and Managing Director in the board meeting after the date of conviction, i. e., after December 22,perusal of the provisions of sections 267, 274 and 283 makes it clear that the Legislature had contemplated cases of disqualification of a Director on the one hand and Managing Director on the other. In case of a Director, the disqualification may not operate if the Central Government issues a notification or the Director files on appeal within the period of limitation. Such a provision is absent in respect of disqualification incurred by a Managing Director on being convicted of an offence involving moral turpitude. The distinction in the two cases is of crucial relevance because it is obvious that the Legislature was very particular that the benefit of an appeal or the power to remove the disqualification by the Central Government should not be available in the case of Managing Director. The Legislature has enacted the provisions of section 267 by taking into consideration the public interest and the interest of not only the shareholders but of the general public, as it will be difficult for a person convicted of an offence involving moral turpitude to carry out the affairs of the company and which is likely to result into adverse impact on the functioning of the company. It is, therefore, obvious that respondent No. 1 cannot be appointed or continued as Managing Director of the company in view of the specific provisions of section 267 of the Companiescontention of Mr. Cooper that the expression "order" covers even the order of conviction cannot be accepted because the expression used by the Legislature is "execution of the sentence or order". The section makes it clear that the Appellate Court can suspend the execution of the sentence or the execution of the order and in respect of the order of conviction there is no question of execution and consequentlyare unable to find any merit in the contention. The Appellate Court exercising powers under(1) of section 389 of the Code is not concerned with the consequences which may flow from the order of conviction in regard to the provisions of some other statute. The Appellate Court which entertains appeal against the order of conviction is entitled to suspend the execution of the sentence or the orders which flow as a consequence of the judgment either of conviction or acquittal and such a Criminal Appellate Court is not concerned with the consequences in respect of some other statutes which are visited upon the person who is convicted by a Criminalmentioned hereinabove, as regards the recording of order of conviction against a Director, the conviction will not automatically disqualify the Director of a company from holding the post, in case where appeal is preferred within stipulated period of limitation or where the Central Government exempts such person or the company fromis, therefore, obvious that whenever the legislature thought it fit, statutory provisions were made to lessen the rigour of the consequences of recording of conviction. The legislature, in its wisdom, did not make any such provision under section 267 of the Companies Act, when conviction is recorded against a person who is Managing Director. In our judgment, it is not permissible for the Appellate Court which entertains the appeal against the order of conviction to suspend the order of conviction and the only power available under section 389 (1) of the Code of Criminal Procedure is to suspend the execution of the sentence or the order and which expression does not includesubmission is fallacious and cannot be acceded to. The inherent powers cannot be exercised to find some means to pass orders which are not permissible under the Code. We are unable to appreciate how it can be even suggested that conviction can be suspended to secure the ends of justice. In any event, it is not for the Criminal Appellate Court hearing an appeal to decide what are the ends of justice in respect of enforcement of provisions of some other statutes. The powers of the Appellate Court flow from the provisions of the Code and we are not prepared to accept the contention that the Appellate Court hearing the criminal appeal should pass orders to avoid consequences flowing from the provisions of statutes like Companies Act or Representation of the People Act. Such other statutes have taken care of the consequences which flow from the order of conviction recorded by the Criminal Court. In our judgment, the provisions of section 482 of the Code of Criminal Procedure are not at all attracted to claim that order of conviction can be suspended by an order of therespect, we are unable to share the view taken by the Division Bench for the reasons which have been set out hereinabove. The mere fact that the order of conviction leads to some consequences in respect of provisions of other statutes is not sufficient for assuming powers which the Appellate Court does not possess under the Code of Criminalhardly requires to be stated that the purpose of appeal is to get the conviction order vacated but pending appeal it is not open to wipe out the order of conviction by claiming that the order of conviction can be suspended. The decision of the Supreme Court, in our judgment, is of noare unable to find any merit in this submission for more than one reason. In the first instance, we do not read the order of Delhi High Court as suspending the order of conviction and, secondly, even assuming it to be so, in our judgment, the Delhi High Court had no power to suspend the order of conviction. In any event, while determining whether respondent No. 1 is disqualified to hold the post of Managing Director under section 267 of the Companies Act, it is entirely immaterial what Delhi High Court contemplated while passing such order. The consequences flowing from the provisions of section 267 of the Companies Act do not depend upon the passing of the order by Delhi High Court. The right of respondent No. 1 to hold the post of Managing Director comes to an end the moment the order of conviction issubmission is correct and the respondent No. 1 cannot avoid the consequences of the provisions of section 267 of the Companies Act merely because the parties had earlier filed consent terms. It is necessary to note that the provisions of the Companies Act are enacted by taking into consideration the public interest and not only the interest of the shareholders or the Directors of theare unable to accede to the submission because even at the interlocutory stage the matter was extensively debated and the decision which affects not only the shareholders but the public at large cannot be permitted to operate when foundsubmission is obviously one of desperation and cannot be accepted. In the first instance, the pleadings in paragraph 22 of the plaint clearly indicate that respondent No. 1 was keen to secure a declaration that he is entitled to function as Chairman and Managing Director of the company. Secondly, in case the issue does not arise on the basis of averments in the plaint, then respondent No. 1 need not have sought interim relief of injunction restraining the appellant and respondent No. 5 from obstructing respondent No. 1 in functioning as Chairman and Managing Director of the company. The mere perusal of prayer (b) of the plaint and prayer (b) of the notice of motion leaves no manner of doubt that respondent No. 1 was more keen to secure a declaration of his status to function as Managing Director of the company. It also cannot be overlooked that it is futile for respondent No. 1 now to claim that the issue as to whether respondent No. 1 is entitled to function as Managing Director does not arise when the respondent No. 1 argued the matter extensively before the learned Single Judge and the learned Single Judge framed specific point for determination on this aspect. A perusal of the prayers in the plaint leaves no manner of doubt that respondent No. 1 was keen to secure a declaration of his legal status as Chairman and Managing Director of the company and, therefore, it is too late in the date now to claim that the learned Single Judge should not have examined thethe submission is one of desperation because such is not the object of making the prayer in the plaint nor in the motion and such a relief was already covered by prayer (d) of the plaint and prayer (a) of the notice of motion. In our judgment, the respondent No. 1 now cannot avoid the consequences of the decision which was invited in the trial Court. In our judgment, the learned Single Judge was in error in granting relief in terms of prayer (b) of the notice of motion. As the relief granted in terms of prayer (a) of the notice of motion is not challenged by the appellant as mentioned hereinabove, the same need not be disturbed. | 1 | 7,750 | 1,996 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
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of the Companies Act cannot be visited upon respondent No. 1. We are unable to find any merit in this submission for more than one reason. In the first instance, we do not read the order of Delhi High Court as suspending the order of conviction and, secondly, even assuming it to be so, in our judgment, the Delhi High Court had no power to suspend the order of conviction. In any event, while determining whether respondent No. 1 is disqualified to hold the post of Managing Director under section 267 of the Companies Act, it is entirely immaterial what Delhi High Court contemplated while passing such order. The consequences flowing from the provisions of section 267 of the Companies Act do not depend upon the passing of the order by Delhi High Court. The right of respondent No. 1 to hold the post of Managing Director comes to an end the moment the order of conviction is recorded. Mr. Cooper then urged that the appellant had earlier filed Company Petition No. 681 of 1990 in this Court to challenge the appointment of respondent No. 1 as Managing Director on the ground of conviction recorded by Additional Sessions Judge but subsequently that petition was withdrawn. Identical grievance made in Petition No. 10 of 1991 filed before the Company Law Board ended in consent terms filed by the parties and where the appellant accepted that respondent No. 1 can validly hold the post of Managing Director inspite of conviction. Mr. Cooper submitted that in view of the conduct of the appellant in filing consent terms before the Company Law Board, it is not open for the appellant now to claim that respondent No. 1 ceases to be Managing Director because of conviction. The submission was countered by Mr. Sibal by urging that the doctrine of estoppel cannot be attracted when there is violation of the statutory provision. The submission is correct and the respondent No. 1 cannot avoid the consequences of the provisions of section 267 of the Companies Act merely because the parties had earlier filed consent terms. It is necessary to note that the provisions of the Companies Act are enacted by taking into consideration the public interest and not only the interest of the shareholders or the Directors of the company. It was also urged that the order passed by the learned Single Judge on notice of motion taken out by respondent Nos. 1 to 3 is at the interlocutory stage and should not be disturbed in appeal. We are unable to accede to the submission because even at the interlocutory stage the matter was extensively debated and the decision which affects not only the shareholders but the public at large cannot be permitted to operate when found erroneous.( 14 ) FINALLY, Mr. Cooper urged that respondent Nos. 1 to 3 had not specifically asked for any final relief in the suit in regard to the interim injunction sought against the appellant and respondent No. 5 restraining them from obstructing or interfering with the respondent No. 1s functioning as Chairman and Managing Director of the Company. Mr. Cooper submitted that the issue as to whether the respondent No. 1 can function as Chairman and Managing Director does not arise on the strength of the averments made in the plaint and, consequently, it was not necessary for the trial Judge to examine the same. The submission is obviously one of desperation and cannot be accepted. In the first instance, the pleadings in paragraph 22 of the plaint clearly indicate that respondent No. 1 was keen to secure a declaration that he is entitled to function as Chairman and Managing Director of the company. Secondly, in case the issue does not arise on the basis of averments in the plaint, then respondent No. 1 need not have sought interim relief of injunction restraining the appellant and respondent No. 5 from obstructing respondent No. 1 in functioning as Chairman and Managing Director of the company. The mere perusal of prayer (b) of the plaint and prayer (b) of the notice of motion leaves no manner of doubt that respondent No. 1 was more keen to secure a declaration of his status to function as Managing Director of the company. It also cannot be overlooked that it is futile for respondent No. 1 now to claim that the issue as to whether respondent No. 1 is entitled to function as Managing Director does not arise when the respondent No. 1 argued the matter extensively before the learned Single Judge and the learned Single Judge framed specific point for determination on this aspect. A perusal of the prayers in the plaint leaves no manner of doubt that respondent No. 1 was keen to secure a declaration of his legal status as Chairman and Managing Director of the company and, therefore, it is too late in the date now to claim that the learned Single Judge should not have examined the issue. Mr. Cooper also urged that prayer (e) in the plaint should be read as seeking an injunction restraining the appellant from obstructing or interfering with the functioning of respondent No. 1 as Chairman and Managing Director of the company in pursuance of the resolution alleged to have been passed on July 13, 1992. Again, the submission is one of desperation because such is not the object of making the prayer in the plaint nor in the motion and such a relief was already covered by prayer (d) of the plaint and prayer (a) of the notice of motion. In our judgment, the respondent No. 1 now cannot avoid the consequences of the decision which was invited in the trial Court. In our judgment, the learned Single Judge was in error in granting relief in terms of prayer (b) of the notice of motion. As the relief granted in terms of prayer (a) of the notice of motion is not challenged by the appellant as mentioned hereinabove, the same need not be disturbed.
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make any such provision under section 267 of the Companies Act, when conviction is recorded against a person who is Managing Director. In our judgment, it is not permissible for the Appellate Court which entertains the appeal against the order of conviction to suspend the order of conviction and the only power available under section 389 (1) of the Code of Criminal Procedure is to suspend the execution of the sentence or the order and which expression does not includesubmission is fallacious and cannot be acceded to. The inherent powers cannot be exercised to find some means to pass orders which are not permissible under the Code. We are unable to appreciate how it can be even suggested that conviction can be suspended to secure the ends of justice. In any event, it is not for the Criminal Appellate Court hearing an appeal to decide what are the ends of justice in respect of enforcement of provisions of some other statutes. The powers of the Appellate Court flow from the provisions of the Code and we are not prepared to accept the contention that the Appellate Court hearing the criminal appeal should pass orders to avoid consequences flowing from the provisions of statutes like Companies Act or Representation of the People Act. Such other statutes have taken care of the consequences which flow from the order of conviction recorded by the Criminal Court. In our judgment, the provisions of section 482 of the Code of Criminal Procedure are not at all attracted to claim that order of conviction can be suspended by an order of therespect, we are unable to share the view taken by the Division Bench for the reasons which have been set out hereinabove. The mere fact that the order of conviction leads to some consequences in respect of provisions of other statutes is not sufficient for assuming powers which the Appellate Court does not possess under the Code of Criminalhardly requires to be stated that the purpose of appeal is to get the conviction order vacated but pending appeal it is not open to wipe out the order of conviction by claiming that the order of conviction can be suspended. The decision of the Supreme Court, in our judgment, is of noare unable to find any merit in this submission for more than one reason. In the first instance, we do not read the order of Delhi High Court as suspending the order of conviction and, secondly, even assuming it to be so, in our judgment, the Delhi High Court had no power to suspend the order of conviction. In any event, while determining whether respondent No. 1 is disqualified to hold the post of Managing Director under section 267 of the Companies Act, it is entirely immaterial what Delhi High Court contemplated while passing such order. The consequences flowing from the provisions of section 267 of the Companies Act do not depend upon the passing of the order by Delhi High Court. The right of respondent No. 1 to hold the post of Managing Director comes to an end the moment the order of conviction issubmission is correct and the respondent No. 1 cannot avoid the consequences of the provisions of section 267 of the Companies Act merely because the parties had earlier filed consent terms. It is necessary to note that the provisions of the Companies Act are enacted by taking into consideration the public interest and not only the interest of the shareholders or the Directors of theare unable to accede to the submission because even at the interlocutory stage the matter was extensively debated and the decision which affects not only the shareholders but the public at large cannot be permitted to operate when foundsubmission is obviously one of desperation and cannot be accepted. In the first instance, the pleadings in paragraph 22 of the plaint clearly indicate that respondent No. 1 was keen to secure a declaration that he is entitled to function as Chairman and Managing Director of the company. Secondly, in case the issue does not arise on the basis of averments in the plaint, then respondent No. 1 need not have sought interim relief of injunction restraining the appellant and respondent No. 5 from obstructing respondent No. 1 in functioning as Chairman and Managing Director of the company. The mere perusal of prayer (b) of the plaint and prayer (b) of the notice of motion leaves no manner of doubt that respondent No. 1 was more keen to secure a declaration of his status to function as Managing Director of the company. It also cannot be overlooked that it is futile for respondent No. 1 now to claim that the issue as to whether respondent No. 1 is entitled to function as Managing Director does not arise when the respondent No. 1 argued the matter extensively before the learned Single Judge and the learned Single Judge framed specific point for determination on this aspect. A perusal of the prayers in the plaint leaves no manner of doubt that respondent No. 1 was keen to secure a declaration of his legal status as Chairman and Managing Director of the company and, therefore, it is too late in the date now to claim that the learned Single Judge should not have examined thethe submission is one of desperation because such is not the object of making the prayer in the plaint nor in the motion and such a relief was already covered by prayer (d) of the plaint and prayer (a) of the notice of motion. In our judgment, the respondent No. 1 now cannot avoid the consequences of the decision which was invited in the trial Court. In our judgment, the learned Single Judge was in error in granting relief in terms of prayer (b) of the notice of motion. As the relief granted in terms of prayer (a) of the notice of motion is not challenged by the appellant as mentioned hereinabove, the same need not be disturbed.
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Bareilly Holdings Ltd Vs. Their Workmen | to him under the conditions of his service which are similar to the benefits conferred by the Act".The relevant part of Regulation 97 is as follows :"Discontinuance or reduction of benefit. An employer may discontinue or reduce the benefits payable to his employees under conditions of their service, which are similar to the benefits conferred by the Act to the extent specified below, namely :(a) from the date of commencement of the first benefit period following the appointed day for his factory or establishment -(i) sick leave on half-pay to the full extent;(ii) such proportion of any combined general purposes and sick leave on half-pay as may be assigned as sick leave but in any case not exceeding 50 per cent of such combined leave;(b) .........................................................Provided that where an employee avails himself of any leave from the employer for sickness, maternity or temporary disablement, the employer shall be entitled to deduct from the leave salary of the employee the amount of benefit to which he may be entitled under the Act for the corresponding period."7. The general purpose and effect of S. 72 is to deny to the employers the right or power to reduce or discontinue the benefit payable to the workmen under their conditions of service on the ground that the benefits available under the conditions of service and under the E.S.I. Act being similar, the workmen would not be entitled to a double benefit. Section 72 provides in terms that the mere circumstances that an employer is liable to make a contribution under the E.S.I. Act will not entitle him, directly or indirectly, to reduce the wages of an employee or, in so far as the Regulations permits, discontinue or reduce the benefit payable to him under the conditions of his service even if those benefits are similar to the benefits conferred by the E.S.I. Act. The case of the appellant before the Industrial Tribunal was that it was making a contribution to the E.S.I. Corporation for the benefit of its employees and if any individual employee chose not to avail of the benefits due to him from the Corporation on account of the sickness benefit, it is he who ought to suffer and there would be no justification for obliging the employer to spend for his sickness benefit twice over. It is precisely this type of argument and attitude that the Legislature anticipated and guarded against by incorporating the particular provisions in S. 72. The purpose of that provision is evidently to discourage employers from using the benefit provided under the E.S.I. Act as an excuse or justification for reducing or discontinuing the benefits available to the workmen under their conditions of service on the ground of similarly between the two types of benefits.8. That leads to the question as to whether Regulation 97 can justify the deduction made by the appellant. Regulation 97 provides that an employer may discontinue or reduce the benefits payable to his employees under the conditions of their service which are similar to the benefits conferred by the E.S.I. Act but only to the extent specified in cls. (a) and (b) of the Regulation. We are not concerned with cl. (b) and sub-cls. (i) and (ii) of cl. (a) have no application in the instant case.9. The appellant relies strongly on the proviso to Regulation 97 under which, where an employee avails himself of any leave from the employer for sickness, the employer shall be entitled to deduct from his leave salary the amount of benefit to which he may be entitled under the Act for the corresponding period. The case of the appellant is that it is enough for justifying the deduction from wages due to the workmen for sick leave that the employee is covered by the E.S.I. Act or the E.S.I. Scheme. It is not possible to accept this submission. In the first place S.46 of the E.S.I. Act would show that employees who are covered by the E.S.I. Act are entitled to certain benefits subject to the provisions of the E.S.I. Act. It is, therefore, not as if the workmen are entitled to the benefits absolutely and without compliance with the conditions laid down by the Act or the Regulations. Secondly, the proviso to Regulation 97 days says that the employer shall be entitled to deduct from the leave salary of the employee, "the amount of benefit" to which he may be entitled under the E.S.I. Act for the corresponding period of his sickness. A workman does not become entitled to the "amount" payable to him by way of sickness benefit unless, in the first instance, he chooses to avail himself of the sickness benefit. That benefit cannot be forced on him. This would show that the employers right to make a deduction from the employees sick leave wages can only be exercised in respect of those days of sickness leave for which the workman has actually availed of the sickness benefit. Benefits which are available under the E.S.I. Act are not intended as substitutes for benefits to which the workmen are entitled under the conditions of their service. As states earlier, a workmen becomes entitled to sickness benefit only if he is qualified for it and he gets a cash benefit only if he avails himself of the sickness benefit. Thus, it is only when a workman, in fact obtains or receives a cash benefit that the employer can exercise his right to make a deduction from wages due to him by way of leave salary.10. The decision of this Court in Hindustan Times Ltd. v. Their Workmen, [1963-I L.L.J. 108]; (1964) 1 S.C.R. 234, is not directly in point but it can be cited in support of our reasoning to the extent which it holds that in providing for periodical payments to an insured worker in case of sickness the Legislature did not intend to substitute any of those benefits for the workmens right to get leave on full pay on the grounds of sickness.11. | 0[ds]5. Before dealing with this question, it may be mentioned that the appellant has no objection to paying full wages for two days of sick leave to the workmen and in fact, it has been paying full wages for two days out of 15 days sick leave due to the workmen. The reason for this course seems to be that the workmen do not get cash benefit for the first two days of the waiting period of sickness by reason of the provisions of S.49 of the E.S.I. Act. The dispute in this appeal is, therefore, confined to a period of 13 days of sick leave only, for which the workmen are being paid half wages by the appellant.t leads to the question as to whether Regulation 97 can justify the deduction made by the appellant. Regulation 97 provides that an employer may discontinue or reduce the benefits payable to his employees under the conditions of their service which are similar to the benefits conferred by the E.S.I. Act but only to the extent specified in cls. (a) and (b) of the Regulation.We are not concerned with cl. (b) and(i) and (ii) of cl. (a) have no application in the instant case.The appellant relies strongly on the proviso to Regulation 97 under which, where an employee avails himself of any leave from the employer for sickness, the employer shall be entitled to deduct from his leave salary the amount of benefit to which he may be entitled under the Act for the corresponding period. The case of the appellant is that it is enough for justifying the deduction from wages due to the workmen for sick leave that the employee is covered by the E.S.I. Act or the E.S.I. Scheme. It is not possible to accept this submission. In the first place S.46 of the E.S.I. Act would show that employees who are covered by the E.S.I. Act are entitled to certain benefits subject to the provisions of the E.S.I. Act. It is, therefore, not as if the workmen are entitled to the benefits absolutely and without compliance with the conditions laid down by the Act or the Regulations. Secondly, the proviso to Regulation 97 days says that the employer shall be entitled to deduct from the leave salary of the employee, "the amount of benefit" to which he may be entitled under the E.S.I. Act for the corresponding period of his sickness. A workman does not become entitled to the "amount" payable to him by way of sickness benefit unless, in the first instance, he chooses to avail himself of the sickness benefit. That benefit cannot be forced on him. This would show that the employers right to make a deduction from the employees sick leave wages can only be exercised in respect of those days of sickness leave for which the workman has actually availed of the sickness benefit. Benefits which are available under the E.S.I. Act are not intended as substitutes for benefits to which the workmen are entitled under the conditions of their service. As states earlier, a workmen becomes entitled to sickness benefit only if he is qualified for it and he gets a cash benefit only if he avails himself of the sickness benefit. Thus, it is only when a workman, in fact obtains or receives a cash benefit that the employer can exercise his right to make a deduction from wages due to him by way of leave salary.The decision of this Court in Hindustan Times Ltd. v. Their Workmen,L.L.J. 108]; (1964) 1 S.C.R. 234, is not directly in point but it can be cited in support of our reasoning to the extent which it holds that in providing for periodical payments to an insured worker in case of sickness the Legislature did not intend to substitute any of those benefits for the workmens right to get leave on full pay on the grounds of sickness. | 0 | 1,894 | 728 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
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to him under the conditions of his service which are similar to the benefits conferred by the Act".The relevant part of Regulation 97 is as follows :"Discontinuance or reduction of benefit. An employer may discontinue or reduce the benefits payable to his employees under conditions of their service, which are similar to the benefits conferred by the Act to the extent specified below, namely :(a) from the date of commencement of the first benefit period following the appointed day for his factory or establishment -(i) sick leave on half-pay to the full extent;(ii) such proportion of any combined general purposes and sick leave on half-pay as may be assigned as sick leave but in any case not exceeding 50 per cent of such combined leave;(b) .........................................................Provided that where an employee avails himself of any leave from the employer for sickness, maternity or temporary disablement, the employer shall be entitled to deduct from the leave salary of the employee the amount of benefit to which he may be entitled under the Act for the corresponding period."7. The general purpose and effect of S. 72 is to deny to the employers the right or power to reduce or discontinue the benefit payable to the workmen under their conditions of service on the ground that the benefits available under the conditions of service and under the E.S.I. Act being similar, the workmen would not be entitled to a double benefit. Section 72 provides in terms that the mere circumstances that an employer is liable to make a contribution under the E.S.I. Act will not entitle him, directly or indirectly, to reduce the wages of an employee or, in so far as the Regulations permits, discontinue or reduce the benefit payable to him under the conditions of his service even if those benefits are similar to the benefits conferred by the E.S.I. Act. The case of the appellant before the Industrial Tribunal was that it was making a contribution to the E.S.I. Corporation for the benefit of its employees and if any individual employee chose not to avail of the benefits due to him from the Corporation on account of the sickness benefit, it is he who ought to suffer and there would be no justification for obliging the employer to spend for his sickness benefit twice over. It is precisely this type of argument and attitude that the Legislature anticipated and guarded against by incorporating the particular provisions in S. 72. The purpose of that provision is evidently to discourage employers from using the benefit provided under the E.S.I. Act as an excuse or justification for reducing or discontinuing the benefits available to the workmen under their conditions of service on the ground of similarly between the two types of benefits.8. That leads to the question as to whether Regulation 97 can justify the deduction made by the appellant. Regulation 97 provides that an employer may discontinue or reduce the benefits payable to his employees under the conditions of their service which are similar to the benefits conferred by the E.S.I. Act but only to the extent specified in cls. (a) and (b) of the Regulation. We are not concerned with cl. (b) and sub-cls. (i) and (ii) of cl. (a) have no application in the instant case.9. The appellant relies strongly on the proviso to Regulation 97 under which, where an employee avails himself of any leave from the employer for sickness, the employer shall be entitled to deduct from his leave salary the amount of benefit to which he may be entitled under the Act for the corresponding period. The case of the appellant is that it is enough for justifying the deduction from wages due to the workmen for sick leave that the employee is covered by the E.S.I. Act or the E.S.I. Scheme. It is not possible to accept this submission. In the first place S.46 of the E.S.I. Act would show that employees who are covered by the E.S.I. Act are entitled to certain benefits subject to the provisions of the E.S.I. Act. It is, therefore, not as if the workmen are entitled to the benefits absolutely and without compliance with the conditions laid down by the Act or the Regulations. Secondly, the proviso to Regulation 97 days says that the employer shall be entitled to deduct from the leave salary of the employee, "the amount of benefit" to which he may be entitled under the E.S.I. Act for the corresponding period of his sickness. A workman does not become entitled to the "amount" payable to him by way of sickness benefit unless, in the first instance, he chooses to avail himself of the sickness benefit. That benefit cannot be forced on him. This would show that the employers right to make a deduction from the employees sick leave wages can only be exercised in respect of those days of sickness leave for which the workman has actually availed of the sickness benefit. Benefits which are available under the E.S.I. Act are not intended as substitutes for benefits to which the workmen are entitled under the conditions of their service. As states earlier, a workmen becomes entitled to sickness benefit only if he is qualified for it and he gets a cash benefit only if he avails himself of the sickness benefit. Thus, it is only when a workman, in fact obtains or receives a cash benefit that the employer can exercise his right to make a deduction from wages due to him by way of leave salary.10. The decision of this Court in Hindustan Times Ltd. v. Their Workmen, [1963-I L.L.J. 108]; (1964) 1 S.C.R. 234, is not directly in point but it can be cited in support of our reasoning to the extent which it holds that in providing for periodical payments to an insured worker in case of sickness the Legislature did not intend to substitute any of those benefits for the workmens right to get leave on full pay on the grounds of sickness.11.
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5. Before dealing with this question, it may be mentioned that the appellant has no objection to paying full wages for two days of sick leave to the workmen and in fact, it has been paying full wages for two days out of 15 days sick leave due to the workmen. The reason for this course seems to be that the workmen do not get cash benefit for the first two days of the waiting period of sickness by reason of the provisions of S.49 of the E.S.I. Act. The dispute in this appeal is, therefore, confined to a period of 13 days of sick leave only, for which the workmen are being paid half wages by the appellant.t leads to the question as to whether Regulation 97 can justify the deduction made by the appellant. Regulation 97 provides that an employer may discontinue or reduce the benefits payable to his employees under the conditions of their service which are similar to the benefits conferred by the E.S.I. Act but only to the extent specified in cls. (a) and (b) of the Regulation.We are not concerned with cl. (b) and(i) and (ii) of cl. (a) have no application in the instant case.The appellant relies strongly on the proviso to Regulation 97 under which, where an employee avails himself of any leave from the employer for sickness, the employer shall be entitled to deduct from his leave salary the amount of benefit to which he may be entitled under the Act for the corresponding period. The case of the appellant is that it is enough for justifying the deduction from wages due to the workmen for sick leave that the employee is covered by the E.S.I. Act or the E.S.I. Scheme. It is not possible to accept this submission. In the first place S.46 of the E.S.I. Act would show that employees who are covered by the E.S.I. Act are entitled to certain benefits subject to the provisions of the E.S.I. Act. It is, therefore, not as if the workmen are entitled to the benefits absolutely and without compliance with the conditions laid down by the Act or the Regulations. Secondly, the proviso to Regulation 97 days says that the employer shall be entitled to deduct from the leave salary of the employee, "the amount of benefit" to which he may be entitled under the E.S.I. Act for the corresponding period of his sickness. A workman does not become entitled to the "amount" payable to him by way of sickness benefit unless, in the first instance, he chooses to avail himself of the sickness benefit. That benefit cannot be forced on him. This would show that the employers right to make a deduction from the employees sick leave wages can only be exercised in respect of those days of sickness leave for which the workman has actually availed of the sickness benefit. Benefits which are available under the E.S.I. Act are not intended as substitutes for benefits to which the workmen are entitled under the conditions of their service. As states earlier, a workmen becomes entitled to sickness benefit only if he is qualified for it and he gets a cash benefit only if he avails himself of the sickness benefit. Thus, it is only when a workman, in fact obtains or receives a cash benefit that the employer can exercise his right to make a deduction from wages due to him by way of leave salary.The decision of this Court in Hindustan Times Ltd. v. Their Workmen,L.L.J. 108]; (1964) 1 S.C.R. 234, is not directly in point but it can be cited in support of our reasoning to the extent which it holds that in providing for periodical payments to an insured worker in case of sickness the Legislature did not intend to substitute any of those benefits for the workmens right to get leave on full pay on the grounds of sickness.
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Operative Cane Union Federation Limited Vs. U.P. Co-Liladhar and Others | which was already included under the repealed Act. On the contrary it would appear that what was implicit in the 1912 Act and the rules framed thereunder that such a dispute did not touch the business of the society and was not within the purview of the compulsory arbitration, was made explicit by expressly excluding it from the field of compulsory arbitration.20. However, we would rest this judgment on the second limb of the submission in that not only the dispute must be one touching the business of the society but it must be between the co-operative society and its officer. Firstly, respondent being shown not to be one of enumerated officers of the society nor a person empowered to give directions in regard to the business of the society under the rules or the bye-laws, he would not be an officer within the meaning of the expression in 1912 Act. Any dispute between an employee not being an officer and the society would not attract Rule 115. In that view of the matter such a dispute would fall outside the purview of Rule 115 and it being a civil dispute the civil Court will have jurisdiction to entertain and adjudicate upon the same.21. The High Court approached the matter from an entirely different angle. The learned Judge held that it is case would be governed by the 1953 Act and Rules 54 and 55 enacted in exercise of the powers conferred by S.28 of the 1953 Act have provided a specific forum, viz., a reference to the Cane Commissioner and appeal to the State Government and as Rule 108 is not attracted the dispute is not required to be referred to arbitration and, therefore, the civil Court will have jurisdiction to entertain the suit. With respect, it is difficult to subscribe to this view of the High Court. 1953 Act has been enacted to regulate supply and purchase of sugarcane required for sue in sugar factories, qur, rab and khandsari manufacturing units. It envisages setting up of a sugarcane board and the board was entrusted with the function pertaining to the regulation, supply and purchase of cane for sugar factories and for the maintenance of healthy relation between occupiers, managers of factories, cane growers co-operative societies, etc. The Act also envisaged setting up of a development council and its functions have been enumerated in S. 6. On a survey of these provisions it appears that the Act was enacted to regulate relations between the cane-growers on one hand and sugar factories on the other. The expression cane growers "co-operative society" has been defined in S. 2(f) to mean a society registered under the Co-operative Societies Act, 1912, one of the objects of which is to sell cane grown by its members and includes the federation of such societies registered under S.8 of the said Act. The appellant is thus a co-operative society and it being a federation of such co-operative societies it is also included in the expression "cane growers" co-operative society. "Section 28(2)(n) of the Act was relied upon to show that the State Government has power to frame rules amongst others, for the control of the staff and finances. In exercise of this power Rules 54 and 55 have been enacted. Rule 54 provides that the power to appoint, grant leave of absence, to punish, dismiss, transfer and control secretaries, assistant secretaries and accountants of Cane Growers Co-operative Societies whether permanent or temporary shall be exercised by the federation, subject to the general control of the Cane Commissioner who may rescind or modify and order of the Federation. There is a proviso which is not relevant for the present purpose. Rule 55 confers powers similar to those enumerated in Rule 54 to be exercised by the society in respect of other staff subject to the regulations made by the federation and the general control of the Cane Commissioner. Shorn of embellishment, Rule 55 confers power on the Federation, namely, the first appellant, to make regulations for appointment, granting leave of absence, punishment, dismissal and transfer of the staff other than those enumerated in Rule 54 and these regulations have to be made subject to the general control of the Cane Commissioner Rule 108 provides for compulsory arbitration of disputes therein mentioned and it is common ground that a dispute of the present nature under examination will not be covered by Rule 108. The High Court observed that Rules 54 and 55 being a complete code in itself with regard to regulation making power for disciplinary action with a provision for appeal to the Cane Commissioner and Rule 108 not being attracted, the civil Court will have jurisdiction to entertain the present dispute. The High Court overlooked the fact that 1953 Act neither repeals nor replaces 1912 Act. A cane grower other than a Cane-growers Co-operative Society would be governed by 1953 Act but the cane grower not being a co-operative society it would not be governed by the 1912 Act. A cane-Growers Co-operative Society would be governed with regard to the provisions for law of Co-operative Societies by 1912 Act and in respect of its business of growing and selling cane it would be governed by 1953 Act. Both Acts operate in an entirely different field and are enacted with different objects in view. 1953 Act neither trenches upon 1912 Act nor supersedes or supplants any provisions of it. Therefore, some provisions of 1953 Act cannot override or supersede the provisions of 1912 Act and by mere reference to the provisions of 1953 Act the High Court was in error in totally overlooking and ignoring the provisions in 1912 Act and the rules enacted thereunder.22. However, in view of our finding that the dispute brought before the civil Court in this case was not a dispute between a society and its officer and, therefore, one of the conditions for attracting Rule 115 having not been satisfied, the civil Court will have the jurisdiction to entertain the suit. | 0[ds]First appellant is a federation of Cane-Growers Co-operative Societies and second appellant is a federating unit of the first appellant. At the relevant time first and second appellants were governed by the 1912 Act as well as by the 1953 Act. Each as a Co-operative Society would be governed by the 1912 Act and each as a Cane-growers Co-operative Society and its federation, for the purpose of regulation of supply and purchase of sugarcane, would be governed by the 1953are conscious of the fact that the definition of the expression "officer" is an inclusive definition. An inclusive definition widens the etymological meaning of the expression or term including therein that which would ordinarily not be comprehended therein. Firstly, keeping apart the expansive definition by including officers who would otherwise not be comprehended in the expression "officer", it may be necessary to ascertain whether first respondent, giving the expression "officer" its ordinary etymological meaning, would be comprehended therein. It may be noticed that the Legislature never intended to include every employee or servant of the society within the expression "officer". There is some element of a right to command in the word "officer" with someone whose duty it would be to obey. If there is an officer ordinarily there will be someone subordinate to him, the officer enjoying the power to command and give directions and subordinate to obey or carry out directions. It may be that even one who is to carry out directions may be an officer in relation to his subordinates. Thus, what is implicit in the expression "officer" is made explicit by the latter part of definition which provides that such other person would also be an officer who is empowered under the rules and bye-laws to give directions with regard to the business of the society. If it is contended that a particular person is an officer because he is empowered to give directions with regard to the business of the society, it would be a question of act in each case whether a particular person is an officer or a servant or an employee. Unless the appellants are in a position to point out that first respondent was an officer in the sense that he had power to command and insist or subordinate to obey his directions with regard to business of the society, it would be difficult to believe that a person designated as supervisor drawing a salary of Rs. 150 and incharge of manure godown would be an officer. In this connection it would be advantageous to refer to S.43(g) of the 1912 Act which confers powers on the Local Government to make rules providing for the appointment, suspension and removal of the members of the Committee and other officer, and for the procedure at meetings of the Committee, and for the powers to be exercised and the duties to be performed by the Committee and the officers. No rule enacted in exercise of this power was pointed out to us to assert that first respondent would be such officer as contemplated in S.therefore, the 1912 Act confers power to enact rules and the rules so enacted are statutory and if the rules provide for certain types of disputes between certain specific parties to be resolved by arbitration and the decision of the arbitrators is made final and conclusive not correctible by the Civil Court or unquestionable before the civil Court, undoubtedly, the jurisdiction of the civil court in respect of such specified disputes between specified parties enumerated in Rule 115 would be whollycontention would stand disposed of in view of our finding that the first respondent is not an officer of the society. In order to attract Rule 115 it must be shown (i) that the dispute is the one touching the business of the co-operative society; and (ii) that it is between the society and any officer of the society. Both the conditions have to be cummulatively fulfilled before Rule 115 is attracted which would result in ouster of the jurisdiction of the civil Court in respect of dispute in view of the provision contained in Ruleis unnecessary to dilate upon this aspect in view of the two decisions of this Court.Therefore, on the strength of the aforementioned two decisions it has to be held that a dispute arising out of a disciplinary proceeding resulting in dismissal of an employee of the society cannot be said to be a dispute touching the business of the society.It will be crystal clear that while making a statutory provision for resolution of disputes involving co-operative societies by arbitration by the Registrar, the Legislature in terms excluded a dispute relating to disciplinary action taken by the society against paid servants of the society from the purview of the compulsory arbitration. It is legislative exposition of the topic under discussion. It must, however, be made distinctly clear that at the relevant time 1912 Act was in force and the contention has to be answered with reference to 1912 Act and the rules framed thereunder. It is, however difficult to believe that the 1965 Act which repealed and replaced the 1912 Act excluded from the field of operation that which was already included under the repealed Act. On the contrary it would appear that what was implicit in the 1912 Act and the rules framed thereunder that such a dispute did not touch the business of the society and was not within the purview of the compulsory arbitration, was made explicit by expressly excluding it from the field of compulsory arbitration.20. However, we would rest this judgment on the second limb of the submission in that not only the dispute must be one touching the business of the society but it must be between the co-operative society and its officer. Firstly, respondent being shown not to be one of enumerated officers of the society nor a person empowered to give directions in regard to the business of the society under the rules or the bye-laws, he would not be an officer within the meaning of the expression in 1912 Act. Any dispute between an employee not being an officer and the society would not attract Rule 115. In that view of the matter such a dispute would fall outside the purview of Rule 115 and it being a civil dispute the civil Court will have jurisdiction to entertain and adjudicate upon thea survey of these provisions it appears that the Act was enacted to regulate relations between the cane-growers on one hand and sugar factories on the other. The expression cane growers "co-operative society" has been defined in S. 2(f) to mean a society registered under the Co-operative Societies Act, 1912, one of the objects of which is to sell cane grown by its members and includes the federation of such societies registered under S.8 of the said Act. The appellant is thus a co-operative society and it being a federation of such co-operative societies it is also included in the expression "cane growers" co-operative society. "Section 28(2)(n) of the Act was relied upon to show that the State Government has power to frame rules amongst others, for the control of the staff and finances. In exercise of this power Rules 54 and 55 have been enacted. Rule 54 provides that the power to appoint, grant leave of absence, to punish, dismiss, transfer and control secretaries, assistant secretaries and accountants of Cane Growers Co-operative Societies whether permanent or temporary shall be exercised by the federation, subject to the general control of the Cane Commissioner who may rescind or modify and order of the Federation. There is a proviso which is not relevant for the present purpose. Rule 55 confers powers similar to those enumerated in Rule 54 to be exercised by the society in respect of other staff subject to the regulations made by the federation and the general control of the Cane Commissioner. Shorn of embellishment, Rule 55 confers power on the Federation, namely, the first appellant, to make regulations for appointment, granting leave of absence, punishment, dismissal and transfer of the staff other than those enumerated in Rule 54 and these regulations have to be made subject to the general control of the Cane Commissioner Rule 108 provides for compulsory arbitration of disputes therein mentioned and it is common ground that a dispute of the present nature under examination will not be covered by Rule 108. The High Court observed that Rules 54 and 55 being a complete code in itself with regard to regulation making power for disciplinary action with a provision for appeal to the Cane Commissioner and Rule 108 not being attracted, the civil Court will have jurisdiction to entertain the present dispute. The High Court overlooked the fact that 1953 Act neither repeals nor replaces 1912 Act. A cane grower other than a Cane-growers Co-operative Society would be governed by 1953 Act but the cane grower not being a co-operative society it would not be governed by the 1912 Act. A cane-Growers Co-operative Society would be governed with regard to the provisions for law of Co-operative Societies by 1912 Act and in respect of its business of growing and selling cane it would be governed by 1953 Act. Both Acts operate in an entirely different field and are enacted with different objects in view. 1953 Act neither trenches upon 1912 Act nor supersedes or supplants any provisions of it. Therefore, some provisions of 1953 Act cannot override or supersede the provisions of 1912 Act and by mere reference to the provisions of 1953 Act the High Court was in error in totally overlooking and ignoring the provisions in 1912 Act and the rules enacted thereunder.22. However, in view of our finding that the dispute brought before the civil Court in this case was not a dispute between a society and its officer and, therefore, one of the conditions for attracting Rule 115 having not been satisfied, the civil Court will have the jurisdiction to entertain the suit.There is another Act which has a bearing on the topic under discussion styled as U.P. Sugarcane (regulation of Supply and Purchase) Act, 1953. It is an Act enacted to regulate the supply and purchase of sugar cane required for use in sugar factories, and gur rab or khandsari sugar manufacturing units and matters incidental or ancillary thereto. It contemplates setting up of a Sugarcane Board and provides for its functions and duties and the methods of filling up vacancies and regulating its finances. Section 20 confers power on the Governor to impose by a notification a cess not exceeding the amount prescribed in the section on the entry of sugarcane into an area specified in such notification for consumption, use or sale there. Section 28 confers power on the State Government to make rules for the purpose of carrying into effect the provisions of the Act. | 0 | 6,120 | 1,950 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
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which was already included under the repealed Act. On the contrary it would appear that what was implicit in the 1912 Act and the rules framed thereunder that such a dispute did not touch the business of the society and was not within the purview of the compulsory arbitration, was made explicit by expressly excluding it from the field of compulsory arbitration.20. However, we would rest this judgment on the second limb of the submission in that not only the dispute must be one touching the business of the society but it must be between the co-operative society and its officer. Firstly, respondent being shown not to be one of enumerated officers of the society nor a person empowered to give directions in regard to the business of the society under the rules or the bye-laws, he would not be an officer within the meaning of the expression in 1912 Act. Any dispute between an employee not being an officer and the society would not attract Rule 115. In that view of the matter such a dispute would fall outside the purview of Rule 115 and it being a civil dispute the civil Court will have jurisdiction to entertain and adjudicate upon the same.21. The High Court approached the matter from an entirely different angle. The learned Judge held that it is case would be governed by the 1953 Act and Rules 54 and 55 enacted in exercise of the powers conferred by S.28 of the 1953 Act have provided a specific forum, viz., a reference to the Cane Commissioner and appeal to the State Government and as Rule 108 is not attracted the dispute is not required to be referred to arbitration and, therefore, the civil Court will have jurisdiction to entertain the suit. With respect, it is difficult to subscribe to this view of the High Court. 1953 Act has been enacted to regulate supply and purchase of sugarcane required for sue in sugar factories, qur, rab and khandsari manufacturing units. It envisages setting up of a sugarcane board and the board was entrusted with the function pertaining to the regulation, supply and purchase of cane for sugar factories and for the maintenance of healthy relation between occupiers, managers of factories, cane growers co-operative societies, etc. The Act also envisaged setting up of a development council and its functions have been enumerated in S. 6. On a survey of these provisions it appears that the Act was enacted to regulate relations between the cane-growers on one hand and sugar factories on the other. The expression cane growers "co-operative society" has been defined in S. 2(f) to mean a society registered under the Co-operative Societies Act, 1912, one of the objects of which is to sell cane grown by its members and includes the federation of such societies registered under S.8 of the said Act. The appellant is thus a co-operative society and it being a federation of such co-operative societies it is also included in the expression "cane growers" co-operative society. "Section 28(2)(n) of the Act was relied upon to show that the State Government has power to frame rules amongst others, for the control of the staff and finances. In exercise of this power Rules 54 and 55 have been enacted. Rule 54 provides that the power to appoint, grant leave of absence, to punish, dismiss, transfer and control secretaries, assistant secretaries and accountants of Cane Growers Co-operative Societies whether permanent or temporary shall be exercised by the federation, subject to the general control of the Cane Commissioner who may rescind or modify and order of the Federation. There is a proviso which is not relevant for the present purpose. Rule 55 confers powers similar to those enumerated in Rule 54 to be exercised by the society in respect of other staff subject to the regulations made by the federation and the general control of the Cane Commissioner. Shorn of embellishment, Rule 55 confers power on the Federation, namely, the first appellant, to make regulations for appointment, granting leave of absence, punishment, dismissal and transfer of the staff other than those enumerated in Rule 54 and these regulations have to be made subject to the general control of the Cane Commissioner Rule 108 provides for compulsory arbitration of disputes therein mentioned and it is common ground that a dispute of the present nature under examination will not be covered by Rule 108. The High Court observed that Rules 54 and 55 being a complete code in itself with regard to regulation making power for disciplinary action with a provision for appeal to the Cane Commissioner and Rule 108 not being attracted, the civil Court will have jurisdiction to entertain the present dispute. The High Court overlooked the fact that 1953 Act neither repeals nor replaces 1912 Act. A cane grower other than a Cane-growers Co-operative Society would be governed by 1953 Act but the cane grower not being a co-operative society it would not be governed by the 1912 Act. A cane-Growers Co-operative Society would be governed with regard to the provisions for law of Co-operative Societies by 1912 Act and in respect of its business of growing and selling cane it would be governed by 1953 Act. Both Acts operate in an entirely different field and are enacted with different objects in view. 1953 Act neither trenches upon 1912 Act nor supersedes or supplants any provisions of it. Therefore, some provisions of 1953 Act cannot override or supersede the provisions of 1912 Act and by mere reference to the provisions of 1953 Act the High Court was in error in totally overlooking and ignoring the provisions in 1912 Act and the rules enacted thereunder.22. However, in view of our finding that the dispute brought before the civil Court in this case was not a dispute between a society and its officer and, therefore, one of the conditions for attracting Rule 115 having not been satisfied, the civil Court will have the jurisdiction to entertain the suit.
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at the relevant time 1912 Act was in force and the contention has to be answered with reference to 1912 Act and the rules framed thereunder. It is, however difficult to believe that the 1965 Act which repealed and replaced the 1912 Act excluded from the field of operation that which was already included under the repealed Act. On the contrary it would appear that what was implicit in the 1912 Act and the rules framed thereunder that such a dispute did not touch the business of the society and was not within the purview of the compulsory arbitration, was made explicit by expressly excluding it from the field of compulsory arbitration.20. However, we would rest this judgment on the second limb of the submission in that not only the dispute must be one touching the business of the society but it must be between the co-operative society and its officer. Firstly, respondent being shown not to be one of enumerated officers of the society nor a person empowered to give directions in regard to the business of the society under the rules or the bye-laws, he would not be an officer within the meaning of the expression in 1912 Act. Any dispute between an employee not being an officer and the society would not attract Rule 115. In that view of the matter such a dispute would fall outside the purview of Rule 115 and it being a civil dispute the civil Court will have jurisdiction to entertain and adjudicate upon thea survey of these provisions it appears that the Act was enacted to regulate relations between the cane-growers on one hand and sugar factories on the other. The expression cane growers "co-operative society" has been defined in S. 2(f) to mean a society registered under the Co-operative Societies Act, 1912, one of the objects of which is to sell cane grown by its members and includes the federation of such societies registered under S.8 of the said Act. The appellant is thus a co-operative society and it being a federation of such co-operative societies it is also included in the expression "cane growers" co-operative society. "Section 28(2)(n) of the Act was relied upon to show that the State Government has power to frame rules amongst others, for the control of the staff and finances. In exercise of this power Rules 54 and 55 have been enacted. Rule 54 provides that the power to appoint, grant leave of absence, to punish, dismiss, transfer and control secretaries, assistant secretaries and accountants of Cane Growers Co-operative Societies whether permanent or temporary shall be exercised by the federation, subject to the general control of the Cane Commissioner who may rescind or modify and order of the Federation. There is a proviso which is not relevant for the present purpose. Rule 55 confers powers similar to those enumerated in Rule 54 to be exercised by the society in respect of other staff subject to the regulations made by the federation and the general control of the Cane Commissioner. Shorn of embellishment, Rule 55 confers power on the Federation, namely, the first appellant, to make regulations for appointment, granting leave of absence, punishment, dismissal and transfer of the staff other than those enumerated in Rule 54 and these regulations have to be made subject to the general control of the Cane Commissioner Rule 108 provides for compulsory arbitration of disputes therein mentioned and it is common ground that a dispute of the present nature under examination will not be covered by Rule 108. The High Court observed that Rules 54 and 55 being a complete code in itself with regard to regulation making power for disciplinary action with a provision for appeal to the Cane Commissioner and Rule 108 not being attracted, the civil Court will have jurisdiction to entertain the present dispute. The High Court overlooked the fact that 1953 Act neither repeals nor replaces 1912 Act. A cane grower other than a Cane-growers Co-operative Society would be governed by 1953 Act but the cane grower not being a co-operative society it would not be governed by the 1912 Act. A cane-Growers Co-operative Society would be governed with regard to the provisions for law of Co-operative Societies by 1912 Act and in respect of its business of growing and selling cane it would be governed by 1953 Act. Both Acts operate in an entirely different field and are enacted with different objects in view. 1953 Act neither trenches upon 1912 Act nor supersedes or supplants any provisions of it. Therefore, some provisions of 1953 Act cannot override or supersede the provisions of 1912 Act and by mere reference to the provisions of 1953 Act the High Court was in error in totally overlooking and ignoring the provisions in 1912 Act and the rules enacted thereunder.22. However, in view of our finding that the dispute brought before the civil Court in this case was not a dispute between a society and its officer and, therefore, one of the conditions for attracting Rule 115 having not been satisfied, the civil Court will have the jurisdiction to entertain the suit.There is another Act which has a bearing on the topic under discussion styled as U.P. Sugarcane (regulation of Supply and Purchase) Act, 1953. It is an Act enacted to regulate the supply and purchase of sugar cane required for use in sugar factories, and gur rab or khandsari sugar manufacturing units and matters incidental or ancillary thereto. It contemplates setting up of a Sugarcane Board and provides for its functions and duties and the methods of filling up vacancies and regulating its finances. Section 20 confers power on the Governor to impose by a notification a cess not exceeding the amount prescribed in the section on the entry of sugarcane into an area specified in such notification for consumption, use or sale there. Section 28 confers power on the State Government to make rules for the purpose of carrying into effect the provisions of the Act.
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H. Fillunger & Company Private Limited & Others Vs. Ajit Arvind Marathe & Others | provisions of this Act shall have effect notwithstanding anything to the contrary contained in the memorandum or articles of a company, or in any agreement executed by it, or in any resolution passed by the company in general meeting or by its Board of Directors, whether the same be registered, executed or passed, as the case may be, before or after the commencement of this Act; and(b) any provision contained in the memorandum, articles, agreement or resolution shall, to the extent to which it is repugnant to the provisions of this Act, become or be void, as the case may be. The provision states that save as otherwise expressly provided in this Act, the provisions of this Act, notwithstanding anything to the contrary contained in the memorandum or articles of a company shall have an overriding effect. Considering the facts of the case and provisions of Section 13(1) and Section 61 of the Act of 2013, amending Memorandum of Association by the company would not be contrary to the provisions of Section 6 of the Act. Clause 7 of the Articles of Association would not go contrary to the provisions of Section 6 of the Act as it states that the memorandum could be altered subject to the provisions of the Act and Section 94 of the Act of 1956, which corresponds to the provisions of Section 61 of the Act of 2013.25. Section 16 of the Act of 1956 refers to alteration of memorandum, which reads as under:16. Alteration of memorandum. (1) A company shall not alter the conditions contained in its memorandum except in the cases, in the mode, and to the extent for which express provision is made in this Act.(2) Only those provisions which are required by section 13 or by any other specific provision contained in this Act to be stated in the memorandum of the company concerned shall be deemed to be conditions contained in the memorandum.(3) Other provisions contained in the memorandum including those relating to the appointment of a managing director or manager, may be altered in the same manner as the articles of the company, but if there is any express provision in this Act permitting of the alteration of such provisions in any other manner, they may also be altered in such other manner.(4) All references to the articles of a company in this Act shall be construed as including references to the other provisions aforesaid contained in its memorandum. Section 31 of the Act of 1956 refers to alteration of articles by special resolution, which reads as under:-31. Alteration of articles by special resolution.-(1) Subject to the provisions of this Act and to the conditions contained in its memorandum a company may, by special resolution, alter its articles:Provided that no alteration made in the articles under this subsection which has the effect of converting a public company into a private company, shall have effect unless such alteration has been approved by the Central Government.(2) Any alteration so made shall, subject to the provisions of this Act, be as valid as if originally contained in the articles and be subject in like manner to alteration by special resolution.(2A) Where any alteration such as is referred to in the proviso to sub-section (1) has been approved by the Central Government, a printed copy of the articles as altered shall be filed by the company with the Registrar within one month of the date of receipt of the order of approval.(3) The power of altering articles under this section shall, in the case of any company formed and registered under Act No. 19 of 1857 and Act No. 7 of 1860 or either of them, extend to altering any provisions in Table B annexed to Act 19 of 1857, and shall also, in the case of an unlimited company formed and registered under the said Acts or either of them, extend to altering any regulations relating to the amount of capital or its distribution into shares, notwithstanding that those regulations are contained in the memorandum.26. If we consider the provisions of Sections 16, 31 and 94 of the Act of 1956, we could notice a conscious and intentional change in the legislative approach while framing Section 13 of the Act of 2013. We cannot ignore the specific provisions of Section 13(1) so lightly. In the present case Clause V of the Memorandum of Association reads as under:-V. The share capital of the company shall consist of Rupees five lacs (Rs.5,00,000) divided into five thousand (5000/-) equity shares of Rupees one hundred (Rs.100/-) capable of being increased in accordance with the Companys regulations, and the legislative provisions for the time being in force in that behalf. The authorised capital of the company increased from Rs.2 lacs to 5 lacs by way of special resolution passed in the extra ordinary General Meeting held on Wednesday 17th Dec. 1969.The said clause further supports the view that the share capital can be increased in accordance with the Companys regulations and the legislative provisions of the Act of 2013, viz. Sections 13(1), 61 and 64.27. In the present facts of the case, the Board of Directors had amended the Memorandum of Association and Articles of Association by simple majority but in an EOGM of the company called on 23/3/2017 passed a special resolution for amending the Articles of Association. In accordance with the provisions of Section 13(6) of the Act of 2013, after amendment of Memorandum of Association, the company had filed an application with the Registrar of Companies for recording alterations of its memorandum. Accordingly, the Registrar of Companies had registered the same. In accordance with the increased share capital, new shares were distributed. It was argued that shares were even offered to the plaintiff but he declined to accept the same. The Articles of Association were amended in accordance with the provisions of Section 14 of the Act of 2013. We, therefore, find that there was reasonable and statutory compliance of the provisions of law. | 1[ds]22. During the course of hearing, it was submitted that the company business had come to a standstill, because of which the company could not grow by expanding its business. The purpose of the new Companies Act, 2013 in regulating the affairs of the company will have to be considered in the light of the facts of the case and the interest of trade and commerce, as canvassed by the learned senior counsel appearing for the appellants. The company had issued additional shares on 9/3/2015 and the Registrar of Companies had already registered the amendment to the Memorandum of Association. This fact cannot be overlooked. Therelief was granted by the trial court on 21/9/2015 directing not to conduct the meeting when in the month of January 2015 itself the meeting of the Board of Directors was conducted. In fact, by retrospective effect theinjunction was interpreted to have been operated against the resolution passed in the meeting of the Board of Directors held in the month of January 2015. The second meeting was held on 30/9/2015 and accordingly the resolution was passed amending he Articles of Association by simple majority. The company consists of six directors who are family members inter se. The trial court while passing order below Exhs. 5, 40 and 54 prescribed the reasoning, which appears to be in para 27 of the order. It is the finding of the trial court that if the defendants want to make any alteration in the Articles of Association, it should be in consonance with the provisions of the newfacie, we find that the plaintiff approached the trial court at a belated stage. By that time, the resolution for amending Memorandum of Association was passed in the meeting held on 27/1/2015 by simple majority. Additional shares were issued on 9/3/2015. The Registrar of Companies had registered the amended Memorandum of Association. Objection raised by the plaintiff before the Registrar was overruled and thereafter the trial court passed anorder not to hold a meeting called on 25/9/2015. By a further order, the defendants were temporarily restrained from making changes in the Articles of Association in the meeting scheduled on 30/09/2016 only.In the present facts of the case, the Board of Directors had amended the Memorandum of Association and Articles of Association by simple majority but in an EOGM of the company called on 23/3/2017 passed a special resolution for amending the Articles of Association. In accordance with the provisions of Section 13(6) of the Act of 2013, after amendment of Memorandum of Association, the company had filed an application with the Registrar of Companies for recording alterations of its memorandum. Accordingly, the Registrar of Companies had registered the same. In accordance with the increased share capital, new shares were distributed. It was argued that shares were even offered to the plaintiff but he declined to accept the same. The Articles of Association were amended in accordance with the provisions of Section 14 of the Act of 2013. We, therefore, find that there was reasonable and statutory compliance of the provisions of law. | 1 | 5,491 | 559 | ### Instruction:
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provisions of this Act shall have effect notwithstanding anything to the contrary contained in the memorandum or articles of a company, or in any agreement executed by it, or in any resolution passed by the company in general meeting or by its Board of Directors, whether the same be registered, executed or passed, as the case may be, before or after the commencement of this Act; and(b) any provision contained in the memorandum, articles, agreement or resolution shall, to the extent to which it is repugnant to the provisions of this Act, become or be void, as the case may be. The provision states that save as otherwise expressly provided in this Act, the provisions of this Act, notwithstanding anything to the contrary contained in the memorandum or articles of a company shall have an overriding effect. Considering the facts of the case and provisions of Section 13(1) and Section 61 of the Act of 2013, amending Memorandum of Association by the company would not be contrary to the provisions of Section 6 of the Act. Clause 7 of the Articles of Association would not go contrary to the provisions of Section 6 of the Act as it states that the memorandum could be altered subject to the provisions of the Act and Section 94 of the Act of 1956, which corresponds to the provisions of Section 61 of the Act of 2013.25. Section 16 of the Act of 1956 refers to alteration of memorandum, which reads as under:16. Alteration of memorandum. (1) A company shall not alter the conditions contained in its memorandum except in the cases, in the mode, and to the extent for which express provision is made in this Act.(2) Only those provisions which are required by section 13 or by any other specific provision contained in this Act to be stated in the memorandum of the company concerned shall be deemed to be conditions contained in the memorandum.(3) Other provisions contained in the memorandum including those relating to the appointment of a managing director or manager, may be altered in the same manner as the articles of the company, but if there is any express provision in this Act permitting of the alteration of such provisions in any other manner, they may also be altered in such other manner.(4) All references to the articles of a company in this Act shall be construed as including references to the other provisions aforesaid contained in its memorandum. Section 31 of the Act of 1956 refers to alteration of articles by special resolution, which reads as under:-31. Alteration of articles by special resolution.-(1) Subject to the provisions of this Act and to the conditions contained in its memorandum a company may, by special resolution, alter its articles:Provided that no alteration made in the articles under this subsection which has the effect of converting a public company into a private company, shall have effect unless such alteration has been approved by the Central Government.(2) Any alteration so made shall, subject to the provisions of this Act, be as valid as if originally contained in the articles and be subject in like manner to alteration by special resolution.(2A) Where any alteration such as is referred to in the proviso to sub-section (1) has been approved by the Central Government, a printed copy of the articles as altered shall be filed by the company with the Registrar within one month of the date of receipt of the order of approval.(3) The power of altering articles under this section shall, in the case of any company formed and registered under Act No. 19 of 1857 and Act No. 7 of 1860 or either of them, extend to altering any provisions in Table B annexed to Act 19 of 1857, and shall also, in the case of an unlimited company formed and registered under the said Acts or either of them, extend to altering any regulations relating to the amount of capital or its distribution into shares, notwithstanding that those regulations are contained in the memorandum.26. If we consider the provisions of Sections 16, 31 and 94 of the Act of 1956, we could notice a conscious and intentional change in the legislative approach while framing Section 13 of the Act of 2013. We cannot ignore the specific provisions of Section 13(1) so lightly. In the present case Clause V of the Memorandum of Association reads as under:-V. The share capital of the company shall consist of Rupees five lacs (Rs.5,00,000) divided into five thousand (5000/-) equity shares of Rupees one hundred (Rs.100/-) capable of being increased in accordance with the Companys regulations, and the legislative provisions for the time being in force in that behalf. The authorised capital of the company increased from Rs.2 lacs to 5 lacs by way of special resolution passed in the extra ordinary General Meeting held on Wednesday 17th Dec. 1969.The said clause further supports the view that the share capital can be increased in accordance with the Companys regulations and the legislative provisions of the Act of 2013, viz. Sections 13(1), 61 and 64.27. In the present facts of the case, the Board of Directors had amended the Memorandum of Association and Articles of Association by simple majority but in an EOGM of the company called on 23/3/2017 passed a special resolution for amending the Articles of Association. In accordance with the provisions of Section 13(6) of the Act of 2013, after amendment of Memorandum of Association, the company had filed an application with the Registrar of Companies for recording alterations of its memorandum. Accordingly, the Registrar of Companies had registered the same. In accordance with the increased share capital, new shares were distributed. It was argued that shares were even offered to the plaintiff but he declined to accept the same. The Articles of Association were amended in accordance with the provisions of Section 14 of the Act of 2013. We, therefore, find that there was reasonable and statutory compliance of the provisions of law.
### Response:
1
### Explanation:
22. During the course of hearing, it was submitted that the company business had come to a standstill, because of which the company could not grow by expanding its business. The purpose of the new Companies Act, 2013 in regulating the affairs of the company will have to be considered in the light of the facts of the case and the interest of trade and commerce, as canvassed by the learned senior counsel appearing for the appellants. The company had issued additional shares on 9/3/2015 and the Registrar of Companies had already registered the amendment to the Memorandum of Association. This fact cannot be overlooked. Therelief was granted by the trial court on 21/9/2015 directing not to conduct the meeting when in the month of January 2015 itself the meeting of the Board of Directors was conducted. In fact, by retrospective effect theinjunction was interpreted to have been operated against the resolution passed in the meeting of the Board of Directors held in the month of January 2015. The second meeting was held on 30/9/2015 and accordingly the resolution was passed amending he Articles of Association by simple majority. The company consists of six directors who are family members inter se. The trial court while passing order below Exhs. 5, 40 and 54 prescribed the reasoning, which appears to be in para 27 of the order. It is the finding of the trial court that if the defendants want to make any alteration in the Articles of Association, it should be in consonance with the provisions of the newfacie, we find that the plaintiff approached the trial court at a belated stage. By that time, the resolution for amending Memorandum of Association was passed in the meeting held on 27/1/2015 by simple majority. Additional shares were issued on 9/3/2015. The Registrar of Companies had registered the amended Memorandum of Association. Objection raised by the plaintiff before the Registrar was overruled and thereafter the trial court passed anorder not to hold a meeting called on 25/9/2015. By a further order, the defendants were temporarily restrained from making changes in the Articles of Association in the meeting scheduled on 30/09/2016 only.In the present facts of the case, the Board of Directors had amended the Memorandum of Association and Articles of Association by simple majority but in an EOGM of the company called on 23/3/2017 passed a special resolution for amending the Articles of Association. In accordance with the provisions of Section 13(6) of the Act of 2013, after amendment of Memorandum of Association, the company had filed an application with the Registrar of Companies for recording alterations of its memorandum. Accordingly, the Registrar of Companies had registered the same. In accordance with the increased share capital, new shares were distributed. It was argued that shares were even offered to the plaintiff but he declined to accept the same. The Articles of Association were amended in accordance with the provisions of Section 14 of the Act of 2013. We, therefore, find that there was reasonable and statutory compliance of the provisions of law.
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R LAKSHMIKANTHAM Vs. DEVARAJI | agreement. Further, the plaintiff?s readiness and willingness was proved by the fact that he has necessary funds as on the date of the agreement, and thereafter, as was stated by him in his letter dated 18.12.2002. This being the case, the Court ordered specific performance as the balance sale consideration had already been deposited into the Court on the date of the filing of the Suit. The first appeal from the aforesaid judgment was dismissed on 20.12.2010 by the Principal District Judge. The District Judge found concurrently for the plaintiff on all the points argued and hence dismissed the first appeal.6. By the impugned judgment, the High Court reversed the concurrent judgments and held, on a construction of the agreement, that since only three months were given to complete the sale transaction, time was of essence. It also went on to hold that the two letters dated 18.12.2002 and 19.12.2002 could not have been said to have been served on the defendant and hence were not proved. The High court recorded the defendant?s advocate?s statement that it was not going into other aspects except that plaintiff was not ready and willing throughout to perform the sale agreement. Despite this, the High Court held that since the Suit itself was filed belatedly, it would not be enough for the plaintiff to show that he had the necessary funds. It would also have been necessary for him to show that he was otherwise ready and willing throughout, which cannot be said to be correct considering that there was a long time gap between 22.09.2002 and 07.07.2003 inasmuch as the intermediate letters/notices were not proved. The High Court also further stated that the property value was Rs.10 lakhs on the date of the sale agreement, though this was not proved by the defendant, and then went on to state that since readiness and willingness had to be held against the Plaintiff, and since the Suit itself was belated, specific performance cannot be granted on the facts of this case and, as stated earlier, reversed the concurrent findings of the Courts below.7. We have heard learned counsel for the appellant.8. The High Court has, in the second appeal, obviously gone wrong on a number of counts. First, to hold that time was of essence in the agreement, is wholly incorrect. Clause 3 has to be read along with clauses 5 and 8, which clearly show that in the nature of reciprocal promises, the promise made by the seller in clause 5 has to be performed first, viz., that the title documents have to be obtained from the mortgagee after the mortgage is cleared. It is only then that the consideration above Rs.70,000/-, being the balance consideration for the sale, has to be paid. Secondly, the High court is wholly incorrect in stating that the two letters of 18.12.2002 and 19.12.2002 cannot be said to have been proved. Both the letters were registered A.D. letters sent to the very address of the defendant, which the defendant states is the address on which it received the legal notice dated 07.07.2003. Further, the moment the registered letter once sent is returned with the remarks mentioned hereinabove, it shall be deemed to have been served on the defendant on the address so stated, unless the contrary is proved. The defendant did not come forward with anything to show that this was not the proper address. In fact, that this is the proper address is shown by the fact that he acknowledged the receipt of the legal notice dated 07.07.2003 on this very address.9. The High Court order is not correct in stating that readiness and willingness cannot be inferred because the letters dated 18.12.2002 and 19.12.2002 had not been sent to the defendant. The High Court also erred in holding that despite having the necessary funds, the plaintiff could not be said to be ready and willing. In the aforesaid circumstances, the High Court was also incorrect in putting a short delay in filing the Suit against the plaintiff to state that he was not ready and willing. In India, it is well settled that the rule of equity that exists in England, does not apply, and so long as a Suit for specific performance is filed within the period of limitation, delay cannot be put against the plaintiff – See Mademsetty Satyanarayana v. G. Yelloji Rao and others AIR 1965 Supreme Court 1405 (paragraph 7) which reads as under:?(7) Mr. Lakshmaiah cited a long catena of English decisoins to define the scope of a Court?s discretion. Before referring to them, it is necessary to know the fundamental differnece between the two systems-English and Indian-qua the relief of specific performance. In England the relief of specific performance pertains to the domain of equity; in India, to that of statutory law. In England there is no period of limitation for instituting a suit for the said relief and, therefore, mere delay – the time lag depending upon circumstances – may itself be sufficient to refuse the relief; but, in India mere delay cannot be a ground for refusing the said relief, for the statute prescribes the period of limitation. If the suit is in time, delay is sanctioned by law; if it is beyond time, the suit will be dismissed as barred by time; in either case, no question of equity arises.?10. The High Court also went into error in stating that the value of the property was Rs.10 lakhs at the time of the sale agreement. PW-1 in his cross examination admitted that it was Rs.10 lakhs on the date when PW1 was cross-examined. The value of the property on the date of the sale agreement was only Rs.6 lakhs, and it was open for the parties to negotiate the said price upwards or downwards, which was what the parties did in the facts of the present case. Nothing can, therefore, be derived from the erroneous assumption that a valuable property had been sold at a throwaway price. | 1[ds]8. The High Court has, in the second appeal, obviously gone wrong on a number of counts. First, to hold that time was of essence in the agreement, is wholly incorrect. Clause 3 has to be read along with clauses 5 and 8, which clearly show that in the nature of reciprocal promises, the promise made by the seller in clause 5 has to be performed first, viz., that the title documents have to be obtained from the mortgagee after the mortgage is cleared. It is only then that the consideration above Rs.70,000/-, being the balance consideration for the sale, has to be paid. Secondly, the High court is wholly incorrect in stating that the two letters of 18.12.2002 and 19.12.2002 cannot be said to have been proved. Both the letters were registered A.D. letters sent to the very address of the defendant, which the defendant states is the address on which it received the legal notice dated 07.07.2003. Further, the moment the registered letter once sent is returned with the remarks mentioned hereinabove, it shall be deemed to have been served on the defendant on the address so stated, unless the contrary is proved. The defendant did not come forward with anything to show that this was not the proper address. In fact, that this is the proper address is shown by the fact that he acknowledged the receipt of the legal notice dated 07.07.2003 on this very address.9. The High Court order is not correct in stating that readiness and willingness cannot be inferred because the letters dated 18.12.2002 and 19.12.2002 had not been sent to the defendant. The High Court also erred in holding that despite having the necessary funds, the plaintiff could not be said to be ready and willing. In the aforesaid circumstances, the High Court was also incorrect in putting a short delay in filing the Suit against the plaintiff to state that he was not ready and willing. In India, it is well settled that the rule of equity that exists in England, does not apply, and so long as a Suit for specific performance is filed within the period of limitation, delay cannot be put against the plaintiff – See Mademsetty Satyanarayana v. G. Yelloji Rao and others AIR 1965 Supreme Court 1405 (paragraph 7) which reads asMr. Lakshmaiah cited a long catena of English decisoins to define the scope of a Court?s discretion. Before referring to them, it is necessary to know the fundamental differnece between the two systems-English and Indian-qua the relief of specific performance. In England the relief of specific performance pertains to the domain of equity; in India, to that of statutory law. In England there is no period of limitation for instituting a suit for the said relief and, therefore, mere delay – the time lag depending upon circumstances – may itself be sufficient to refuse the relief; but, in India mere delay cannot be a ground for refusing the said relief, for the statute prescribes the period of limitation. If the suit is in time, delay is sanctioned by law; if it is beyond time, the suit will be dismissed as barred by time; in either case, no question of equity arises.The High Court also went into error in stating that the value of the property was Rs.10 lakhs at the time of the sale agreement. PW-1 in his cross examination admitted that it was Rs.10 lakhs on the date when PW1 was cross-examined. The value of the property on the date of the sale agreement was only Rs.6 lakhs, and it was open for the parties to negotiate the said price upwards or downwards, which was what the parties did in the facts of the present case. Nothing can, therefore, be derived from the erroneous assumption that a valuable property had been sold at a throwaway price. | 1 | 2,004 | 715 | ### Instruction:
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agreement. Further, the plaintiff?s readiness and willingness was proved by the fact that he has necessary funds as on the date of the agreement, and thereafter, as was stated by him in his letter dated 18.12.2002. This being the case, the Court ordered specific performance as the balance sale consideration had already been deposited into the Court on the date of the filing of the Suit. The first appeal from the aforesaid judgment was dismissed on 20.12.2010 by the Principal District Judge. The District Judge found concurrently for the plaintiff on all the points argued and hence dismissed the first appeal.6. By the impugned judgment, the High Court reversed the concurrent judgments and held, on a construction of the agreement, that since only three months were given to complete the sale transaction, time was of essence. It also went on to hold that the two letters dated 18.12.2002 and 19.12.2002 could not have been said to have been served on the defendant and hence were not proved. The High court recorded the defendant?s advocate?s statement that it was not going into other aspects except that plaintiff was not ready and willing throughout to perform the sale agreement. Despite this, the High Court held that since the Suit itself was filed belatedly, it would not be enough for the plaintiff to show that he had the necessary funds. It would also have been necessary for him to show that he was otherwise ready and willing throughout, which cannot be said to be correct considering that there was a long time gap between 22.09.2002 and 07.07.2003 inasmuch as the intermediate letters/notices were not proved. The High Court also further stated that the property value was Rs.10 lakhs on the date of the sale agreement, though this was not proved by the defendant, and then went on to state that since readiness and willingness had to be held against the Plaintiff, and since the Suit itself was belated, specific performance cannot be granted on the facts of this case and, as stated earlier, reversed the concurrent findings of the Courts below.7. We have heard learned counsel for the appellant.8. The High Court has, in the second appeal, obviously gone wrong on a number of counts. First, to hold that time was of essence in the agreement, is wholly incorrect. Clause 3 has to be read along with clauses 5 and 8, which clearly show that in the nature of reciprocal promises, the promise made by the seller in clause 5 has to be performed first, viz., that the title documents have to be obtained from the mortgagee after the mortgage is cleared. It is only then that the consideration above Rs.70,000/-, being the balance consideration for the sale, has to be paid. Secondly, the High court is wholly incorrect in stating that the two letters of 18.12.2002 and 19.12.2002 cannot be said to have been proved. Both the letters were registered A.D. letters sent to the very address of the defendant, which the defendant states is the address on which it received the legal notice dated 07.07.2003. Further, the moment the registered letter once sent is returned with the remarks mentioned hereinabove, it shall be deemed to have been served on the defendant on the address so stated, unless the contrary is proved. The defendant did not come forward with anything to show that this was not the proper address. In fact, that this is the proper address is shown by the fact that he acknowledged the receipt of the legal notice dated 07.07.2003 on this very address.9. The High Court order is not correct in stating that readiness and willingness cannot be inferred because the letters dated 18.12.2002 and 19.12.2002 had not been sent to the defendant. The High Court also erred in holding that despite having the necessary funds, the plaintiff could not be said to be ready and willing. In the aforesaid circumstances, the High Court was also incorrect in putting a short delay in filing the Suit against the plaintiff to state that he was not ready and willing. In India, it is well settled that the rule of equity that exists in England, does not apply, and so long as a Suit for specific performance is filed within the period of limitation, delay cannot be put against the plaintiff – See Mademsetty Satyanarayana v. G. Yelloji Rao and others AIR 1965 Supreme Court 1405 (paragraph 7) which reads as under:?(7) Mr. Lakshmaiah cited a long catena of English decisoins to define the scope of a Court?s discretion. Before referring to them, it is necessary to know the fundamental differnece between the two systems-English and Indian-qua the relief of specific performance. In England the relief of specific performance pertains to the domain of equity; in India, to that of statutory law. In England there is no period of limitation for instituting a suit for the said relief and, therefore, mere delay – the time lag depending upon circumstances – may itself be sufficient to refuse the relief; but, in India mere delay cannot be a ground for refusing the said relief, for the statute prescribes the period of limitation. If the suit is in time, delay is sanctioned by law; if it is beyond time, the suit will be dismissed as barred by time; in either case, no question of equity arises.?10. The High Court also went into error in stating that the value of the property was Rs.10 lakhs at the time of the sale agreement. PW-1 in his cross examination admitted that it was Rs.10 lakhs on the date when PW1 was cross-examined. The value of the property on the date of the sale agreement was only Rs.6 lakhs, and it was open for the parties to negotiate the said price upwards or downwards, which was what the parties did in the facts of the present case. Nothing can, therefore, be derived from the erroneous assumption that a valuable property had been sold at a throwaway price.
### Response:
1
### Explanation:
8. The High Court has, in the second appeal, obviously gone wrong on a number of counts. First, to hold that time was of essence in the agreement, is wholly incorrect. Clause 3 has to be read along with clauses 5 and 8, which clearly show that in the nature of reciprocal promises, the promise made by the seller in clause 5 has to be performed first, viz., that the title documents have to be obtained from the mortgagee after the mortgage is cleared. It is only then that the consideration above Rs.70,000/-, being the balance consideration for the sale, has to be paid. Secondly, the High court is wholly incorrect in stating that the two letters of 18.12.2002 and 19.12.2002 cannot be said to have been proved. Both the letters were registered A.D. letters sent to the very address of the defendant, which the defendant states is the address on which it received the legal notice dated 07.07.2003. Further, the moment the registered letter once sent is returned with the remarks mentioned hereinabove, it shall be deemed to have been served on the defendant on the address so stated, unless the contrary is proved. The defendant did not come forward with anything to show that this was not the proper address. In fact, that this is the proper address is shown by the fact that he acknowledged the receipt of the legal notice dated 07.07.2003 on this very address.9. The High Court order is not correct in stating that readiness and willingness cannot be inferred because the letters dated 18.12.2002 and 19.12.2002 had not been sent to the defendant. The High Court also erred in holding that despite having the necessary funds, the plaintiff could not be said to be ready and willing. In the aforesaid circumstances, the High Court was also incorrect in putting a short delay in filing the Suit against the plaintiff to state that he was not ready and willing. In India, it is well settled that the rule of equity that exists in England, does not apply, and so long as a Suit for specific performance is filed within the period of limitation, delay cannot be put against the plaintiff – See Mademsetty Satyanarayana v. G. Yelloji Rao and others AIR 1965 Supreme Court 1405 (paragraph 7) which reads asMr. Lakshmaiah cited a long catena of English decisoins to define the scope of a Court?s discretion. Before referring to them, it is necessary to know the fundamental differnece between the two systems-English and Indian-qua the relief of specific performance. In England the relief of specific performance pertains to the domain of equity; in India, to that of statutory law. In England there is no period of limitation for instituting a suit for the said relief and, therefore, mere delay – the time lag depending upon circumstances – may itself be sufficient to refuse the relief; but, in India mere delay cannot be a ground for refusing the said relief, for the statute prescribes the period of limitation. If the suit is in time, delay is sanctioned by law; if it is beyond time, the suit will be dismissed as barred by time; in either case, no question of equity arises.The High Court also went into error in stating that the value of the property was Rs.10 lakhs at the time of the sale agreement. PW-1 in his cross examination admitted that it was Rs.10 lakhs on the date when PW1 was cross-examined. The value of the property on the date of the sale agreement was only Rs.6 lakhs, and it was open for the parties to negotiate the said price upwards or downwards, which was what the parties did in the facts of the present case. Nothing can, therefore, be derived from the erroneous assumption that a valuable property had been sold at a throwaway price.
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Kingfisher Airlines Limited Vs. Union of India Through The Secretary, Ministry of Finance, Government of India & Others | Circular gives a discretion to the Redressal Grievance Committee to decide whether personal hearing should be given or not. There is no express prohibition of the borrower to be represented by a lawyer. The purpose of the Master Circular issued by Reserve Bank of India is to find out whether the defaulter is siphoning of funds or diverting funds and if the Bank comes to that conclusion then it can put further restrictions on the borrowing ability of the borrower. In that sense, there is no adjudication made by the Grievance Redressal Committee but it makes only the assessment of facts and the conclusion is arrived at thereafter on the basis of these facts.22. In the present case, Petitioner Company owes an amount of Rs 6,900 crores from consortium of banks. Repayment of this public money is nowhere in sight. If the allegations in the show-cause notice issued by the Grievance Redressal Committee are correct then it would lead to further depletion of the funds of the Petitioner Company which would make it impossible for consortium of Banks including Respondent No.2 Bank to recover the public money which has been given to the Petitioner.23. Taking into consideration the urgency in the matter, in our view, therefore, the Petitioner is not entitled to be represented by a lawyer. We are fortified by the view taken by the learned Single Judge of the Kolkata High Court vide order dated 10/07/2014 passed in Writ Petition No.1924(W) of 2014 (Kingfisher Airlines Ltd vs. Union of India & Ors) wherein it has been held that in such cases borrower has no right to be represented by an advocate at the hearing before the Committee. This view of the learned Single Judge has been upheld by the Division Bench of the Kolkata High Court in AST No.320 of 2014 in Kingfisher Airlines Limited vs. Union of India & Others with CAN No.8329 of 2014 decided on 28/08/2014.24. Though the Petitioner had preferred an SLP before the Apex Court, the SLP had become infructuous because, by that time, the Petitioner had been declared as Wilful Defaulter. Though the said order was again challenged by the Petitioner before the Kolkata High Court and the Order of Grievance Redressal Committee was set aside, it was not set aside on the ground of the Petitioner not being allowed to be represented by the Advocate.25. We are therefore of the view that the borrower is not entitled, as a matter of right, to be represented by the Advocate before the Grievance Redressal Committee.26. However, in the peculiar facts and circumstances of the case, in order to curtail further time which may be taken for deciding the issue whether the Petitioner is a Wilful Defaulter or not, since the Petitioner may challenge this order in the Apex Court we are of the view that if the Petitioner gives an undertaking to this Court that if it is allowed to be represented by its advocate, its advocate would conclude his submissions in one day then in such an event the Petitioner will be permitted to engage an advocate. The Delhi High Court in its Order dated 28/08/2014 in Kingfisher Airlines Ltd vs. Union of India & Others delivered in W.P. (C) 5532/2014 has made the following observations:-The apprehension expressed by the learned counsel for the respondent that the petitioner is only seeking to delay the proceedings, can be allayed by fixing timelines. Accordingly, it is directed that the respondent shall provide the petitioners with copies of all documents that are relied upon by the respondent, if not already provided within a period of one week from today. The authorized representative of the petitioner alongwith an Advocate and a Senior Advocate, if any, will be present in the office of the respondent bank at 10.30 AM on 22.09.2014. It is also clarified that the petitioner shall confine their oral submissions on that day to not more than six hours. The hearing will be concluded on 22.09.2014 itself. The petitioner is at liberty to file written submissions alongwith any documents that the petitioner wishes to rely upon before the Committee on that date. The Committee shall thereafter take a decision whether the petitioner is a wilful defaulter.27. We are of the view that the formula which is adopted by the Delhi High Court would meet the ends of justice and the Petitioner would not have a grievance that it was not allowed to be represented by an advocate and, at the same time, there would be no question of further delay being caused after the advocate is appointed to represent the Petitioner and the hearing would be concluded immediately.28. In the present case, the first show cause notice was issued to the Petitioner in August, 2014. Thereafter, Petitioner filed two Writ Petitions in this Court on various grounds. Almost a year is passed after issuance of the said notice and yet, hearing has not been taken place before the Grievance Redressal Committee. The very purpose and object of the Master Circular issued by RBI would be rendered nugatory if the Grievance Redressal Committee does not come to a conclusion one way or the other expeditiously. It is under these circumstances, we are of the view that the Petitioner should give an undertaking to this Court that upon being permitted to be represented by an advocate, its advocate would conclude his submissions in one day and thereafter the Grievance Redressal Committee would take decision one way or the other.CONCLUSION:29. For the reasons stated hereinabove, we are of the view that the Petitioner is not entitled to be represented by a lawyer and therefore principles of natural justice will not be violated if the Petitioner is heard without being represented by a lawyer. However, in the peculiar facts and circumstances of the case and to avoid further delay, we permit the Petitioner to appoint an Advocate to represent the Petitioner provided the Petitioner gives an undertaking that hearing of the matter would be concluded in one day. | 1[ds]20. From the conspectus of cases which have been cited before us, we are of the view that there cannot be any straight jacket formula which can decide whether a person is entitled to be represented by an advocate and ultimately it would all depend on facts and circumstances of each case.21. In the present case, both the Circulars namely Circular dated 01/07/2014 and 07/01/2015 do not expressly provide that the borrower can be represented by a lawyer. The second amended Circular gives a discretion to the Redressal Grievance Committee to decide whether personal hearing should be given or not. There is no express prohibition of the borrower to be represented by a lawyer. The purpose of the Master Circular issued by Reserve Bank of India is to find out whether the defaulter is siphoning of funds or diverting funds and if the Bank comes to that conclusion then it can put further restrictions on the borrowing ability of the borrower. In that sense, there is no adjudication made by the Grievance Redressal Committee but it makes only the assessment of facts and the conclusion is arrived at thereafter on the basis of these facts.22. In the present case, PetitionerCompany owes an amount of Rs 6,900 crores from consortium of banks. Repayment of this public money is nowhere in sight. If the allegations in thenotice issued by the Grievance Redressal Committee are correct then it would lead to further depletion of the funds of the PetitionerCompany which would make it impossible for consortium of Banks including Respondent No.2Bank to recover the public money which has been given to the Petitioner.23. Taking into consideration the urgency in the matter, in our view, therefore, the Petitioner is not entitled to be represented by a lawyer. We are fortified by the view taken by the learned Single Judge of the Kolkata High Court vide order dated 10/07/2014 passed in Writ Petition No.1924(W) of 2014 (Kingfisher Airlines Ltd vs. Union of IndiaOrs) wherein it has been held that in such cases borrower has no right to be represented by an advocate at the hearing before the Committee. This view of the learned Single Judge has been upheld by the Division Bench of the Kolkata High Court in AST No.320 of 2014 in Kingfisher Airlines Limited vs. Union of IndiaOthers with CAN No.8329 of 2014 decided on 28/08/2014.24. Though the Petitioner had preferred an SLP before the Apex Court, the SLP had become infructuous because, by that time, the Petitioner had been declared as Wilful Defaulter. Though the said order was again challenged by the Petitioner before the Kolkata High Court and the Order of Grievance Redressal Committee was set aside, it was not set aside on the ground of the Petitioner not being allowed to be represented by the Advocate.25. We are therefore of the view that the borrower is not entitled, as a matter of right, to be represented by the Advocate before the Grievance Redressal Committee.26. However, in the peculiar facts and circumstances of the case, in order to curtail further time which may be taken for deciding the issue whether the Petitioner is a Wilful Defaulter or not, since the Petitioner may challenge this order in the Apex Court we are of the view that if the Petitioner gives an undertaking to this Court that if it is allowed to be represented by its advocate, its advocate would conclude his submissions in one day then in such an event the Petitioner will be permitted to engage an advocate.We are of the view that the formula which is adopted by the Delhi High Court would meet the ends of justice and the Petitioner would not have a grievance that it was not allowed to be represented by an advocate and, at the same time, there would be no question of further delay being caused after the advocate is appointed to represent the Petitioner and the hearing would be concluded immediately.28. In the present case, the first show cause notice was issued to the Petitioner in August, 2014. Thereafter, Petitioner filed two Writ Petitions in this Court on various grounds. Almost a year is passed after issuance of the said notice and yet, hearing has not been taken place before the Grievance Redressal Committee. The very purpose and object of the Master Circular issued by RBI would be rendered nugatory if the Grievance Redressal Committee does not come to a conclusion one way or the other expeditiously. It is under these circumstances, we are of the view that the Petitioner should give an undertaking to this Court that upon being permitted to be represented by an advocate, its advocate would conclude his submissions in one day and thereafter the Grievance Redressal Committee would take decision one way or the other.For the reasons stated hereinabove, we are of the view that the Petitioner is not entitled to be represented by a lawyer and therefore principles of natural justice will not be violated if the Petitioner is heard without being represented by a lawyer. However, in the peculiar facts and circumstances of the case and to avoid further delay, we permit the Petitioner to appoint an Advocate to represent the Petitioner provided the Petitioner gives an undertaking that hearing of the matter would be concluded in one day. | 1 | 5,291 | 944 | ### 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:
Circular gives a discretion to the Redressal Grievance Committee to decide whether personal hearing should be given or not. There is no express prohibition of the borrower to be represented by a lawyer. The purpose of the Master Circular issued by Reserve Bank of India is to find out whether the defaulter is siphoning of funds or diverting funds and if the Bank comes to that conclusion then it can put further restrictions on the borrowing ability of the borrower. In that sense, there is no adjudication made by the Grievance Redressal Committee but it makes only the assessment of facts and the conclusion is arrived at thereafter on the basis of these facts.22. In the present case, Petitioner Company owes an amount of Rs 6,900 crores from consortium of banks. Repayment of this public money is nowhere in sight. If the allegations in the show-cause notice issued by the Grievance Redressal Committee are correct then it would lead to further depletion of the funds of the Petitioner Company which would make it impossible for consortium of Banks including Respondent No.2 Bank to recover the public money which has been given to the Petitioner.23. Taking into consideration the urgency in the matter, in our view, therefore, the Petitioner is not entitled to be represented by a lawyer. We are fortified by the view taken by the learned Single Judge of the Kolkata High Court vide order dated 10/07/2014 passed in Writ Petition No.1924(W) of 2014 (Kingfisher Airlines Ltd vs. Union of India & Ors) wherein it has been held that in such cases borrower has no right to be represented by an advocate at the hearing before the Committee. This view of the learned Single Judge has been upheld by the Division Bench of the Kolkata High Court in AST No.320 of 2014 in Kingfisher Airlines Limited vs. Union of India & Others with CAN No.8329 of 2014 decided on 28/08/2014.24. Though the Petitioner had preferred an SLP before the Apex Court, the SLP had become infructuous because, by that time, the Petitioner had been declared as Wilful Defaulter. Though the said order was again challenged by the Petitioner before the Kolkata High Court and the Order of Grievance Redressal Committee was set aside, it was not set aside on the ground of the Petitioner not being allowed to be represented by the Advocate.25. We are therefore of the view that the borrower is not entitled, as a matter of right, to be represented by the Advocate before the Grievance Redressal Committee.26. However, in the peculiar facts and circumstances of the case, in order to curtail further time which may be taken for deciding the issue whether the Petitioner is a Wilful Defaulter or not, since the Petitioner may challenge this order in the Apex Court we are of the view that if the Petitioner gives an undertaking to this Court that if it is allowed to be represented by its advocate, its advocate would conclude his submissions in one day then in such an event the Petitioner will be permitted to engage an advocate. The Delhi High Court in its Order dated 28/08/2014 in Kingfisher Airlines Ltd vs. Union of India & Others delivered in W.P. (C) 5532/2014 has made the following observations:-The apprehension expressed by the learned counsel for the respondent that the petitioner is only seeking to delay the proceedings, can be allayed by fixing timelines. Accordingly, it is directed that the respondent shall provide the petitioners with copies of all documents that are relied upon by the respondent, if not already provided within a period of one week from today. The authorized representative of the petitioner alongwith an Advocate and a Senior Advocate, if any, will be present in the office of the respondent bank at 10.30 AM on 22.09.2014. It is also clarified that the petitioner shall confine their oral submissions on that day to not more than six hours. The hearing will be concluded on 22.09.2014 itself. The petitioner is at liberty to file written submissions alongwith any documents that the petitioner wishes to rely upon before the Committee on that date. The Committee shall thereafter take a decision whether the petitioner is a wilful defaulter.27. We are of the view that the formula which is adopted by the Delhi High Court would meet the ends of justice and the Petitioner would not have a grievance that it was not allowed to be represented by an advocate and, at the same time, there would be no question of further delay being caused after the advocate is appointed to represent the Petitioner and the hearing would be concluded immediately.28. In the present case, the first show cause notice was issued to the Petitioner in August, 2014. Thereafter, Petitioner filed two Writ Petitions in this Court on various grounds. Almost a year is passed after issuance of the said notice and yet, hearing has not been taken place before the Grievance Redressal Committee. The very purpose and object of the Master Circular issued by RBI would be rendered nugatory if the Grievance Redressal Committee does not come to a conclusion one way or the other expeditiously. It is under these circumstances, we are of the view that the Petitioner should give an undertaking to this Court that upon being permitted to be represented by an advocate, its advocate would conclude his submissions in one day and thereafter the Grievance Redressal Committee would take decision one way or the other.CONCLUSION:29. For the reasons stated hereinabove, we are of the view that the Petitioner is not entitled to be represented by a lawyer and therefore principles of natural justice will not be violated if the Petitioner is heard without being represented by a lawyer. However, in the peculiar facts and circumstances of the case and to avoid further delay, we permit the Petitioner to appoint an Advocate to represent the Petitioner provided the Petitioner gives an undertaking that hearing of the matter would be concluded in one day.
### Response:
1
### Explanation:
20. From the conspectus of cases which have been cited before us, we are of the view that there cannot be any straight jacket formula which can decide whether a person is entitled to be represented by an advocate and ultimately it would all depend on facts and circumstances of each case.21. In the present case, both the Circulars namely Circular dated 01/07/2014 and 07/01/2015 do not expressly provide that the borrower can be represented by a lawyer. The second amended Circular gives a discretion to the Redressal Grievance Committee to decide whether personal hearing should be given or not. There is no express prohibition of the borrower to be represented by a lawyer. The purpose of the Master Circular issued by Reserve Bank of India is to find out whether the defaulter is siphoning of funds or diverting funds and if the Bank comes to that conclusion then it can put further restrictions on the borrowing ability of the borrower. In that sense, there is no adjudication made by the Grievance Redressal Committee but it makes only the assessment of facts and the conclusion is arrived at thereafter on the basis of these facts.22. In the present case, PetitionerCompany owes an amount of Rs 6,900 crores from consortium of banks. Repayment of this public money is nowhere in sight. If the allegations in thenotice issued by the Grievance Redressal Committee are correct then it would lead to further depletion of the funds of the PetitionerCompany which would make it impossible for consortium of Banks including Respondent No.2Bank to recover the public money which has been given to the Petitioner.23. Taking into consideration the urgency in the matter, in our view, therefore, the Petitioner is not entitled to be represented by a lawyer. We are fortified by the view taken by the learned Single Judge of the Kolkata High Court vide order dated 10/07/2014 passed in Writ Petition No.1924(W) of 2014 (Kingfisher Airlines Ltd vs. Union of IndiaOrs) wherein it has been held that in such cases borrower has no right to be represented by an advocate at the hearing before the Committee. This view of the learned Single Judge has been upheld by the Division Bench of the Kolkata High Court in AST No.320 of 2014 in Kingfisher Airlines Limited vs. Union of IndiaOthers with CAN No.8329 of 2014 decided on 28/08/2014.24. Though the Petitioner had preferred an SLP before the Apex Court, the SLP had become infructuous because, by that time, the Petitioner had been declared as Wilful Defaulter. Though the said order was again challenged by the Petitioner before the Kolkata High Court and the Order of Grievance Redressal Committee was set aside, it was not set aside on the ground of the Petitioner not being allowed to be represented by the Advocate.25. We are therefore of the view that the borrower is not entitled, as a matter of right, to be represented by the Advocate before the Grievance Redressal Committee.26. However, in the peculiar facts and circumstances of the case, in order to curtail further time which may be taken for deciding the issue whether the Petitioner is a Wilful Defaulter or not, since the Petitioner may challenge this order in the Apex Court we are of the view that if the Petitioner gives an undertaking to this Court that if it is allowed to be represented by its advocate, its advocate would conclude his submissions in one day then in such an event the Petitioner will be permitted to engage an advocate.We are of the view that the formula which is adopted by the Delhi High Court would meet the ends of justice and the Petitioner would not have a grievance that it was not allowed to be represented by an advocate and, at the same time, there would be no question of further delay being caused after the advocate is appointed to represent the Petitioner and the hearing would be concluded immediately.28. In the present case, the first show cause notice was issued to the Petitioner in August, 2014. Thereafter, Petitioner filed two Writ Petitions in this Court on various grounds. Almost a year is passed after issuance of the said notice and yet, hearing has not been taken place before the Grievance Redressal Committee. The very purpose and object of the Master Circular issued by RBI would be rendered nugatory if the Grievance Redressal Committee does not come to a conclusion one way or the other expeditiously. It is under these circumstances, we are of the view that the Petitioner should give an undertaking to this Court that upon being permitted to be represented by an advocate, its advocate would conclude his submissions in one day and thereafter the Grievance Redressal Committee would take decision one way or the other.For the reasons stated hereinabove, we are of the view that the Petitioner is not entitled to be represented by a lawyer and therefore principles of natural justice will not be violated if the Petitioner is heard without being represented by a lawyer. However, in the peculiar facts and circumstances of the case and to avoid further delay, we permit the Petitioner to appoint an Advocate to represent the Petitioner provided the Petitioner gives an undertaking that hearing of the matter would be concluded in one day.
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Orient Transport Co. Gulabra And Another Vs. Jaya Bharat Credit And Investment Co., Ltd.,And Anr | order of the High Court of Madhya Pradesh dated December 17, 1986. The appeal was filed by the plaintiff whose suit for a declaration that the eight agreements / contracts executed between it and defendant 1 M/s. Jaya Bharat Credit and Investment Company Ltd. were not hire purchase agreements but were agreements relating to transaction of loan and for injunction restraining defendant 1 from enforcing them until the decision of the suit, had been dismissed on the ground that the suit was not maintainable in view of the provisions of Section 32 of the Arbitration Act, 1940 (hereinafter called the Act). Section 32 of the Act stipulates that notwithstanding any law for the time being in force no suit shall lie on any ground whatsoever for a decision upon the existence, effect or validity of an arbitration agreement or award, nor shall any arbitration agreement or award be enforced, set aside, amended, modified or in any way affected otherwise than as provided in the said Act. The execution of documents containing the alleged arbitration clause was not disputed in this case. The clause was as follows: All disputes, differences or claims arising out of this agreement shall be settled by arbitration in accordance with the provision of the Arbitration Act, 1940 or any statutory amendments thereof and shall be referred to the sole arbitration of a person to be nominated by the owners. In the event of death, refusal, neglect, inability or incapability of the person so appointed to act as arbitrator, the owners may appoint a new arbitrator. The award of the arbitrator shall be final and binding on all the parties concerned. 3. Various issues were framed by the trial court. The appellate court confirmed the said decision. There was a second appeal to the High Court. The High Court framed the question of law in the impugned judgment as followsWhether the courts below were right in holding that Section 32 of the Arbitration Act barred the suit and in dismissing the same on the ground? It was contended before the High Court by the appellant that the so-called hire purchase agreements were nothing else than agreements entered into by the plaintiff and defendant 1 with respect to transaction of loan. It was the case of the appellant that the alleged arbitration agreement was not entered into as such in the sense though certain documents were executed, these were not properly understood as hire purchase agreements. Therefore, the main question was whether the existence of the agreement as hire purchase agreement was denied by the appellant and put in issue before the court. Specific case of the appellant was that this was a transaction of loan and there was in fact no agreement of arbitration. It appears from the perusal of the plaint as well as the issue framed that the very existence of the agreement described as hire purchase agreements was put in issue. The execution of the documents was not denied but it was alleged that these were manipulated documents, in other words fraudulent documents and it was further the case of the appellant that there were in fact no agreements which contained the arbitration agreement. The case of the appellant was that there was no document containing any valid arbitration agreement in existence. This fact was raised in the plaint and issue to that effect was raised, in other words that the appellant, plaintiff in this case had contended that the agreement described as hire purchase agreements were untrue and void and procured fraudulently. The issue framed by the learned trial judge also included this specific point. Section of the Act does not contemplate the case of suits challenging the validity of a contract because it contains an arbitration clause. If the intention of the legislature were that all documents containing an arbitration clause should come within the purview of Section 32 and 33, the legislature would have said so in appropriate words. These sections have a very limited application, namely, where the existence or validity of an arbitration agreement and not the contract containing the arbitration agreement is challenged. Every person, it has to be borne in mind has a right to bring a suit which was of a civil nature and the court had jurisdiction to try all suits of civil nature under Section 9 of the Code of Civil Procedure. That right has not been taken away by Section 32 of the Act. Such a right can only be taken away by express terms or by necessary implication. Section 32 of the Act does not have that effect. We have perused the plaint in this case; one of the issue, namely, issue 4 was "whether defendant 1 obtained disputed hire purchase agreements from the plaintiffs in pursuance of its money-lending business? " The existence of the disputed hire purchase agreements were put in issue. It was suggested that these were obtained by dubious method or that these were fraudulently procured. It is true that the execution of that document was not in issue but the existence of that document as an arbitration agreement was in issue. Section 32 and 33 of the Act on the true construction do not purport to deal with suits for declaration that there was never any contract or that contract is void. This principle is well settled. The Division Bench of the Calcutta High Court consisting of Harries, C. J. and Banerjee. J. in State of Bombay v. Adamjee Hajee Dawood and Co (AIR 1951 Cal 147 : 87 : CLJ 352). held that Section 32 of the Act does not contemplate the case of a suit challenging the validity of a contract merely because it contains an arbitration clause. This is the correct position in law. If that is the law then in the facts and circumstances of the case the learned trial court, the learned appellate court and the High Court were in error in this case in dismissing the suit and the appeals respectively. | 1[ds]Section of the Act does not contemplate the case of suits challenging the validity of a contract because it contains an arbitration clause. If the intention of the legislature were that all documents containing an arbitration clause should come within the purview of Section 32 and 33, the legislature would have said so in appropriate words. These sections have a very limited application, namely, where the existence or validity of an arbitration agreement and not the contract containing the arbitration agreement is challenged. Every person, it has to be borne in mind has a right to bring a suit which was of a civil nature and the court had jurisdiction to try all suits of civil nature under Section 9 of the Code of Civil Procedure. That right has not been taken away by Section 32 of the Act. Such a right can only be taken away by express terms or by necessary implication. Section 32 of the Act does not have that effect. We have perused the plaint in this case; one of the issue, namely, issue 4 was "whether defendant 1 obtained disputed hire purchase agreements from the plaintiffs in pursuance of its money-lending business? " The existence of the disputed hire purchase agreements were put in issue. It was suggested that these were obtained by dubious method or that these were fraudulently procured. It is true that the execution of that document was not in issue but the existence of that document as an arbitration agreement was in issue. Section 32 and 33 of the Act on the true construction do not purport to deal with suits for declaration that there was never any contract or that contract is void. This principle is well settled. | 1 | 1,095 | 313 | ### 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:
order of the High Court of Madhya Pradesh dated December 17, 1986. The appeal was filed by the plaintiff whose suit for a declaration that the eight agreements / contracts executed between it and defendant 1 M/s. Jaya Bharat Credit and Investment Company Ltd. were not hire purchase agreements but were agreements relating to transaction of loan and for injunction restraining defendant 1 from enforcing them until the decision of the suit, had been dismissed on the ground that the suit was not maintainable in view of the provisions of Section 32 of the Arbitration Act, 1940 (hereinafter called the Act). Section 32 of the Act stipulates that notwithstanding any law for the time being in force no suit shall lie on any ground whatsoever for a decision upon the existence, effect or validity of an arbitration agreement or award, nor shall any arbitration agreement or award be enforced, set aside, amended, modified or in any way affected otherwise than as provided in the said Act. The execution of documents containing the alleged arbitration clause was not disputed in this case. The clause was as follows: All disputes, differences or claims arising out of this agreement shall be settled by arbitration in accordance with the provision of the Arbitration Act, 1940 or any statutory amendments thereof and shall be referred to the sole arbitration of a person to be nominated by the owners. In the event of death, refusal, neglect, inability or incapability of the person so appointed to act as arbitrator, the owners may appoint a new arbitrator. The award of the arbitrator shall be final and binding on all the parties concerned. 3. Various issues were framed by the trial court. The appellate court confirmed the said decision. There was a second appeal to the High Court. The High Court framed the question of law in the impugned judgment as followsWhether the courts below were right in holding that Section 32 of the Arbitration Act barred the suit and in dismissing the same on the ground? It was contended before the High Court by the appellant that the so-called hire purchase agreements were nothing else than agreements entered into by the plaintiff and defendant 1 with respect to transaction of loan. It was the case of the appellant that the alleged arbitration agreement was not entered into as such in the sense though certain documents were executed, these were not properly understood as hire purchase agreements. Therefore, the main question was whether the existence of the agreement as hire purchase agreement was denied by the appellant and put in issue before the court. Specific case of the appellant was that this was a transaction of loan and there was in fact no agreement of arbitration. It appears from the perusal of the plaint as well as the issue framed that the very existence of the agreement described as hire purchase agreements was put in issue. The execution of the documents was not denied but it was alleged that these were manipulated documents, in other words fraudulent documents and it was further the case of the appellant that there were in fact no agreements which contained the arbitration agreement. The case of the appellant was that there was no document containing any valid arbitration agreement in existence. This fact was raised in the plaint and issue to that effect was raised, in other words that the appellant, plaintiff in this case had contended that the agreement described as hire purchase agreements were untrue and void and procured fraudulently. The issue framed by the learned trial judge also included this specific point. Section of the Act does not contemplate the case of suits challenging the validity of a contract because it contains an arbitration clause. If the intention of the legislature were that all documents containing an arbitration clause should come within the purview of Section 32 and 33, the legislature would have said so in appropriate words. These sections have a very limited application, namely, where the existence or validity of an arbitration agreement and not the contract containing the arbitration agreement is challenged. Every person, it has to be borne in mind has a right to bring a suit which was of a civil nature and the court had jurisdiction to try all suits of civil nature under Section 9 of the Code of Civil Procedure. That right has not been taken away by Section 32 of the Act. Such a right can only be taken away by express terms or by necessary implication. Section 32 of the Act does not have that effect. We have perused the plaint in this case; one of the issue, namely, issue 4 was "whether defendant 1 obtained disputed hire purchase agreements from the plaintiffs in pursuance of its money-lending business? " The existence of the disputed hire purchase agreements were put in issue. It was suggested that these were obtained by dubious method or that these were fraudulently procured. It is true that the execution of that document was not in issue but the existence of that document as an arbitration agreement was in issue. Section 32 and 33 of the Act on the true construction do not purport to deal with suits for declaration that there was never any contract or that contract is void. This principle is well settled. The Division Bench of the Calcutta High Court consisting of Harries, C. J. and Banerjee. J. in State of Bombay v. Adamjee Hajee Dawood and Co (AIR 1951 Cal 147 : 87 : CLJ 352). held that Section 32 of the Act does not contemplate the case of a suit challenging the validity of a contract merely because it contains an arbitration clause. This is the correct position in law. If that is the law then in the facts and circumstances of the case the learned trial court, the learned appellate court and the High Court were in error in this case in dismissing the suit and the appeals respectively.
### Response:
1
### Explanation:
Section of the Act does not contemplate the case of suits challenging the validity of a contract because it contains an arbitration clause. If the intention of the legislature were that all documents containing an arbitration clause should come within the purview of Section 32 and 33, the legislature would have said so in appropriate words. These sections have a very limited application, namely, where the existence or validity of an arbitration agreement and not the contract containing the arbitration agreement is challenged. Every person, it has to be borne in mind has a right to bring a suit which was of a civil nature and the court had jurisdiction to try all suits of civil nature under Section 9 of the Code of Civil Procedure. That right has not been taken away by Section 32 of the Act. Such a right can only be taken away by express terms or by necessary implication. Section 32 of the Act does not have that effect. We have perused the plaint in this case; one of the issue, namely, issue 4 was "whether defendant 1 obtained disputed hire purchase agreements from the plaintiffs in pursuance of its money-lending business? " The existence of the disputed hire purchase agreements were put in issue. It was suggested that these were obtained by dubious method or that these were fraudulently procured. It is true that the execution of that document was not in issue but the existence of that document as an arbitration agreement was in issue. Section 32 and 33 of the Act on the true construction do not purport to deal with suits for declaration that there was never any contract or that contract is void. This principle is well settled.
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Commissioner Of Income Tax, Delhi Vs. M/S Woodward Governor India P. Ltd | asset payable in foreign exchange or to repay moneys borrowed in foreign currency specifically for the purpose of acquiring the asset. Section 43A(1), therefore, has no application unless the asset is acquired and the liability existed, before the change in the rate of exchange takes effect. In such a case, Section 43A contemplates recomputation of the cost of the assets for the purposes of depreciation [Sections 32 and 43(1)], and also as regards capital assets for scientific research [Section 35(1)(iv)] and also regarding patent rights or copyrights [Section 35A]. 31. As held in Arvind Mills case (supra) increase or decrease in liability in the repayment of foreign loan should be taken into account to modify the figure of actual cost in the year in which the increase or decrease in liability arises on account of the fluctuation in the rate of exchange. Thus, the adjustments in the actual cost are to be made irrespective of the date of actual payment in foreign currency made by the assessee. This position also finds place in the clarification issued by the Ministry of Finance dated 4.1.1967 which inter alia reads as under: "2. The Government agrees that for the purposes of the calculation of depreciation allowance, the cost of capital assets imported before the date of devaluation should be written off to the extent of the full amount of the additional rupee liability incurred on account of devaluation and not what is actually paid from year to year. The proposed legal provision in the matter is intended to be framed on this basis." (emphasis supplied) 32. One more aspect needs to be mentioned. Section 43(1) defines actual cost for the purpose of grant of depreciation etc. to mean "the actual cost of the assets to the assessee". Till the insertion of the unamended Section 43A there was no provision in the Income-tax Act for adjustment of the actual cost which was fixed once and for all, at the time of acquisition of the asset. Accordingly, no adjustment could be made in the actual cost of the assets for purposes of grant of depreciation for any increase/decrease of liability subsequently arising due to exchange fluctuation. Consequently, Section 43A was introduced in the Act by Finance Act, 1967 w.e.f. 1.4.1967 in the above terms to provide for adjustment in the actual cost of assets pursuant to change in the foreign currency exchange rates. As a consequence of the insertion of the said section, it became possible to adjust the increase/decrease in liability relating to acquisition of capital assets on account of exchange rate fluctuation, in the actual cost of the assets acquired in foreign currency and for, inter alia, depreciation to be allowed with reference to such increased/decreased cost. This position is also made clear by Circular No. 5-P dated 9.10.1967 issued by CBDT. One more point needs to be mentioned. Section 43A (unamended) corresponds to para 10 of AS-11 similarly providing for adjustment in the carrying cost of fixed assets acquired in foreign currency, due to foreign exchange fluctuation at each balance sheet date. The relevant para reads as follows: "10. Exchange differences arising on repayment of liabilities incurred for the purpose of acquiring fixed assets, which carried in terms of historical cost, should be adjusted in the carrying amount of the respective fixed assets. The carrying amount of such fixed assets should, to the extent not already so adjusted or otherwise accounted for, also be adjusted to account for any increase or decrease in the liability of the enterprise, as expressed in the reporting currency by applying the closing rate, for making payment towards the whole or a part of the cost of the assets or for repayment of the whole or a part of the monies borrowed by the enterprise from any person, directly or indirectly, in foreign currency specifically for the purpose of acquiring those assets." 33. As stated above, what triggers the adjustment in the actual cost of the assets, in terms of unamended Section 43A of the 1961 Act is the change in the rate of exchange subsequent to the acquisition of asset in foreign currency. The section mandates that at any time there is change in the rate of exchange, the same may be given effect to by way of adjustment of the carrying cost of the fixed assets acquired in foreign currency. But for Section 43A which corresponds to para 10 of AS-11 such adjustment in the carrying amount of the fixed assets was not possible, particularly in the light of Section 43(1). The unamended Section 43A nowhere required as condition precedent for making necessary adjustment in the carrying amount of the fixed asset that there should be actual payment of the increased/decreased liability as a consequence of the exchange variation. The words used in the unamended Section 43A were "for making payment" and not "on payment" which is now brought in by amendment to Section 43A vide Finance Act, 2002.34. Lastly, we are of the view that amendment of Section 43A by the Finance Act, 2002 w.e.f. 1.4.2003 is amendatory and not clarificatory. The amendment is in complete substitution of the section as it existed prior thereto. Under the unamended Section 43A adjustment to the actual cost took place on the happening of change in the rate of exchange whereas under the amended Section 43A the adjustment in the actual cost is made on cash basis. This is indicated by the words "at the time of making payment". In other words, under the unamended Section 43A, "actual payment" was not a condition precedent for making necessary adjustment in the carrying cost of the fixed asset acquired in foreign currency, however, under amended Section 43A w.e.f. 1.4.2003 such actual payment of the decreased/enhanced liability is made a condition precedent for making adjustment in the carrying amount of the fixed asset. This indicates a complete structural change brought about in Section 43A vide Finance Act, 2002. Therefore, the amended section is amendatory and not clarificatory in nature. Conclusion: | 0[ds]13. As stated above, one of the main arguments advanced by the learned Additional Solicitor General on behalf of the Department before us was that the word "expenditure" in Section 37(1) connotes "what is paid out" and that which has gone irretrievably. In this connection, heavy reliance was placed on the judgment of this Court in the case of Indian Molasses Company (supra). Relying on the said judgment, it was sought to be argued that the increase in liability at any point of time prior to the date of payment cannot be said to have gone irretrievably as it can always come back. According to the learned counsel, in the case of increase in liability due to foreign exchange fluctuations, if there is a revaluation of the rupeeforeign exchange at or prior to the point of payment, then there would be no question of money having gone irretrievably and consequently, the requirement of "expenditure" is not met. Consequently, the additional liability arising on account of fluctuation in the rate of foreign exchange was merely a contingent/notional liability which does not crystallize till payment. In that case, the Supreme Court was considering the meaning of the expression "expenditure incurred" while dealing with the question as to whether there was a distinction between the actual liability in presenti and a liability de futuro. The word "expenditure" is not defined in the 1961 Act. The word "expenditure" is, therefore, required to be understood in the context in which it is used. Section 37 enjoins that any expenditure not being expenditure of the nature described in Sections 30 to 36 laid out or expended wholly and exclusively for the purposes of the business should be allowed in computing the income chargeable under the head "profits and gains of business". In Sections 30 to 36, the expressions "expenses incurred" as well as "allowances and depreciation" has also been used. For example, depreciation and allowances are dealt with in Section 32. Therefore, Parliament has used the expression "any expenditure" in Section 37 to cover both. Therefore, the expression "expenditure" as used in Section 37 may, in the circumstances of a particular case, cover an amount which is really a "loss" even though the said amount has not gone out from the pocket of the assessee.14. In the case of M.P. Financial Corporation v. CIT reported in 165 ITR 765 the Madhya Pradesh High Court has held that the expression "expenditure" as used in Section 37 may, in the circumstances of a particular case, cover an amount which is a "loss" even though the said amount has not gone out from the pocket of the assessee. This view of the Madhya Pradesh High Court has been approved by this Court in the case of Madras Industrial Investment Corporation Ltd. v. CIT reported in 225 ITR 802 . According to the Law and Practice of Income Tax by Kanga and Palkhivala, Section 37(1) is a residuary section extending the allowance to items of business expenditure not covered by Sections 30 to 36. This Section, according to the learned Author, covers cases of business expenditure only, and not of business losses which are, however, deductible on ordinary principles of commercial accounting. (see page 617 of the eighth edition). It is this principle which attracts the provisions of Section 145. That section recognizes the rights of a trader to adopt either the cash system or the mercantile system of accounting. The quantum of allowances permitted to be deducted under diverse heads under Sections 30 to 43C from the income, profits and gains of a business would differ according to the system adopted. This is made clear by defining the word "paid" in Section 43(2), which is used in several Sections 30 to 43C, as meaning actually paid or incurred according to the method of accounting upon the basis on which profits or gains are computed under Section 28/29. That is why in deciding the question as to whether the word "expenditure" in Section 37(1) includes the word "loss" one has to read Section 37(1) with Section 28, Section 29 and Section 145(1). One more principle needs to be kept in mind. Accounts regularly maintained in the course of business are to be taken as correct unless there are strong and sufficient reasons to indicate that they are unreliable. One more aspect needs to be highlighted. Under Section 28(i), one needs to decide the profits and gains of any business which is carried on by the assessee during the previous year. Therefore, one has to take into accountfor determination of profits. The 1961 Act makes no provision with regard to valuation of stock. But the ordinary principle of commercial accounting requires that in the P&L account the value of theat the beginning and at the end of the year should be entered at cost or market price, whichever is the lower. This is how business profits arising during the year needs to be computed. This is one more reason for reading Section 37(1) with Section 145. For valuing the closing stock at the end of a particular year, the value prevailing on the last date is relevant. This is because profits/loss is embedded in the closing stock. While anticipated loss is taken into account, anticipated profit in the shape of appreciated value of the closing stock is not brought into account, as no prudent trader would care to show increase profits before actual realization. This is the theory underlying the Rule that closing stock is to be valued at cost or market price, whichever is the lower. As profits forpurposes are to be computed in accordance with ordinary principles of commercial accounting, unless, such principles stand superseded or modified by legislative enactments, unrealized profits in the shape of appreciated value of goods remaining unsold at the end of the accounting year and carried over to the following years account in a continuing business are not brought to the charge as a matter of practice, though, as stated above, loss due to fall in the price below cost is allowed even though such loss has not been realized actually. At this stage, we need to emphasise once again that the above system of commercial accounting can be superseded or modified by legislative enactment. This is where Section 145(2) comes into play. Under that section, the Central Government is empowered to notify from time to time the Accounting Standards to be followed by any class of assessees or in respect of any class of income. Accordingly, under Section 209 of the Companies Act, mercantile system of accounting is made mandatory for companies. In other words, accounting standard which is continuously adopted by an assessee can be superseded or modified by Legislative intervention. However, but for such intervention or in cases falling under Section 145(3), the method of accounting undertaken by the assessee continuously is supreme. In the present batch of cases, there is no finding given by the AO on the correctness or completeness of the accounts of the assessee. Equally, there is no finding given by the AO stating that the assessee has not complied with the accounting standards.15. For the reasons given hereinabove, we hold that, in the present case, the "loss" suffered by the assessee on account of the exchange difference as on the date of the balance sheet is an item of expenditure under Section 37(1) of the 1961 Act.16. In the light of what is stated hereinabove, it is clear that profits and gains of the previous year are required to be computed in accordance with the relevant accounting standard. It is important to bear in mind that the basis on whichis valued is part of the method of accounting. It is well established, that, on general principles of commercial accounting, in the P&L account, the values of theat the beginning and at the end of the accounting year should be entered at cost or market value, whichever is lowerthe market value being ascertained as on the last date of the accounting year and not as on any intermediate date between the commencement and the closing of the year, failing which it would not be possible to ascertain the true and correct state of affairs. No gain or profit can arise until a balance is struck between the cost of acquisition and the proceeds of sale. The word "profit" implies a comparison between the state of business at two specific dates, usually separated by an interval of twelve months.is an asset. It is a trading asset. Therefore, the concept of profit and gains made by business during the year can only materialize when a comparison of the assets of the business at two different dates is taken into account. Section 145(1) enacts that for the purpose of Section 28 and Section 56 alone, income, profits and gains must be computed in accordance with the method of accounting regularly employed by the assessee. In this case, we are concerned with Section 28. Therefore, Section 145(1) is attracted to the facts of the present case. Under the mercantile system of accounting, what is due is brought into credit before it is actually received; it brings into debit an expenditure for which a legal liability has been incurred before it is actually disbursed. (see judgment of this Court in the case of United Commercial Bank v. CIT reported in 240 ITR 355) . Therefore, the accounting method followed by an assessee continuously for a given period of time needs to be presumed to be correct till the AO comes to the conclusion for reasons to be given that the system does not reflect true and correct profits. As stated, there is no finding given by the AO on the correctness of the accounting standard followed by the assessee(s) in this batch of Civil Appeals.17. Having come to the conclusion that valuation is a part of the accounting system and having come to the conclusion that business losses are deductible under Section 37(1) on the basis of ordinary principles of commercial accounting and having come to the conclusion that the Central Government has made Accountingmandatory, we are now required to examine the said Accounting Standard ("AS").18.deals with giving of accounting treatment for the effects of changes in foreign exchange rates.deals with effects of Exchange Differences. Under para 2, reporting currency is defined to mean the currency used in presenting the financial statements. Similarly, the words "monetary items" are defined to mean money held and assets and liabilities to be received or paid in fixed amounts, e.g., cash, receivables and payables. The word "paid" is defined under Section 43(2). This has been discussed earlier. Similarly, it is important to note that foreign currency notes, balance in bank accounts denominated in a foreign currency, and receivables/payables and loans denominated in a foreign currency as well as sundry creditors are all monetary items which have to be valued at the closing rate underUnder para 5, a transaction in a foreign currency has to be recorded in the reporting currency by applying to the foreign currency amount the exchange rate between the reporting currency and the foreign currency at the date of the transaction. This is known as recording of transaction on Initial Recognition. Para 7 ofdeals with reporting of the effects of changes in exchange rates subsequent to initial recognition. Para 7(a) inter alia states that on each balance sheet date monetary items, enumerated above, denominated in a foreign currency should be reported using the closing rate. In case of revenue items falling under Section 37(1), para 9 ofwhich deals with recognition of exchange differences, needs to be considered. Under that para, exchange differences arising on foreign currency transactions have to be recognized as income or as expense in the period in which they arise, except as stated in para 10 and para 11 which deals with exchange differences arising on repayment of liabilities incurred for the purpose of acquiring fixed assets, which topic falls under Section 43A of the 1961 Act. At this stage, we are concerned only with para 9 which deals with revenue items. Para 9 ofrecognises exchange differences as income or expense. In cases where, e.g., the rate of dollar risesthe Indian rupee, there is an expense during that period. The important point to be noted is thatstipulates effect of changes in exchange ratemonetary items denominated in a foreign currency to be taken into account for giving accounting treatment on the balance sheet date. Therefore, an enterprise has to report the outstanding liability relating to import of raw materials using closing rate of exchange. Any difference, loss or gain, arising on conversion of the said liability at the closing rate, should be recognized in the P&L account for the reporting period.19. A company imports raw material worth US $ 250000 on 15.1.2002 when the exchange rate was Rs. 46 per US $. The company records the transaction at that rate. The payment for the imports is made on 15.4.2002 when the exchange rate is Rs. 49 per US $. However, on the balance sheet date, 31.3.2002, the rate of exchange is Rs. 50 per US $. In such a case, in terms ofthe effect of the exchange difference has to be taken into P&L account. Sundry creditors is a monetary item and hence such item has to be valued at the closing rate, i.e. Rs. 50 at 31.3.2002, irrespective of the payment for the sale subsequently at a lower rate. The difference of Rs. 4per US $ is to be shown as an exchange loss in the P&L account and is not to be adjusted against the cost of raw materials.One more aspect needs to be mentioned. Section 43(1) defines actual cost for the purpose of grant of depreciation etc. to mean "the actual cost of the assets to the assessee". Till the insertion of the unamended Section 43A there was no provision in theAct for adjustment of the actual cost which was fixed once and for all, at the time of acquisition of the asset. Accordingly, no adjustment could be made in the actual cost of the assets for purposes of grant of depreciation for any increase/decrease of liability subsequently arising due to exchange fluctuation. Consequently, Section 43A was introduced in the Act by Finance Act, 1967 w.e.f. 1.4.1967 in the above terms to provide for adjustment in the actual cost of assets pursuant to change in the foreign currency exchange rates. As a consequence of the insertion of the said section, it became possible to adjust the increase/decrease in liability relating to acquisition of capital assets on account of exchange rate fluctuation, in the actual cost of the assets acquired in foreign currency and for, inter alia, depreciation to be allowed with reference to such increased/decreased cost. This position is also made clear by Circular No.dated 9.10.1967 issued by CBDT. One more point needs to be mentioned. Section 43A (unamended) corresponds to para 10 ofsimilarly providing for adjustment in the carrying cost of fixed assets acquired in foreign currency, due to foreign exchange fluctuation at each balance sheet date. The relevant para reads asExchange differences arising on repayment of liabilities incurred for the purpose of acquiring fixed assets, which carried in terms of historical cost, should be adjusted in the carrying amount of the respective fixed assets. The carrying amount of such fixed assets should, to the extent not already so adjusted or otherwise accounted for, also be adjusted to account for any increase or decrease in the liability of the enterprise, as expressed in the reporting currency by applying the closing rate, for making payment towards the whole or a part of the cost of the assets or for repayment of the whole or a part of the monies borrowed by the enterprise from any person, directly or indirectly, in foreign currency specifically for the purpose of acquiring those assets.As stated above, what triggers the adjustment in the actual cost of the assets, in terms of unamended Section 43A of the 1961 Act is the change in the rate of exchange subsequent to the acquisition of asset in foreign currency. The section mandates that at any time there is change in the rate of exchange, the same may be given effect to by way of adjustment of the carrying cost of the fixed assets acquired in foreign currency. But for Section 43A which corresponds to para 10 ofsuch adjustment in the carrying amount of the fixed assets was not possible, particularly in the light of Section 43(1). The unamended Section 43A nowhere required as condition precedent for making necessary adjustment in the carrying amount of the fixed asset that there should be actual payment of the increased/decreased liability as a consequence of the exchange variation. The words used in the unamended Section 43A were "for making payment" and not "on payment" which is now brought in by amendment to Section 43A vide Finance Act, 2002.34. Lastly, we are of the view that amendment of Section 43A by the Finance Act, 2002 w.e.f. 1.4.2003 is amendatory and not clarificatory. The amendment is in complete substitution of the section as it existed prior thereto. Under the unamended Section 43A adjustment to the actual cost took place on the happening of change in the rate of exchange whereas under the amended Section 43A the adjustment in the actual cost is made on cash basis. This is indicated by the words "at the time of making payment". In other words, under the unamended Section 43A, "actual payment" was not a condition precedent for making necessary adjustment in the carrying cost of the fixed asset acquired in foreign currency, however, under amended Section 43A w.e.f. 1.4.2003 such actual payment of the decreased/enhanced liability is made a condition precedent for making adjustment in the carrying amount of the fixed asset. This indicates a complete structural change brought about in Section 43A vide Finance Act, 2002. Therefore, the amended section is amendatory and not clarificatory in nature. | 0 | 8,414 | 3,379 | ### 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:
asset payable in foreign exchange or to repay moneys borrowed in foreign currency specifically for the purpose of acquiring the asset. Section 43A(1), therefore, has no application unless the asset is acquired and the liability existed, before the change in the rate of exchange takes effect. In such a case, Section 43A contemplates recomputation of the cost of the assets for the purposes of depreciation [Sections 32 and 43(1)], and also as regards capital assets for scientific research [Section 35(1)(iv)] and also regarding patent rights or copyrights [Section 35A]. 31. As held in Arvind Mills case (supra) increase or decrease in liability in the repayment of foreign loan should be taken into account to modify the figure of actual cost in the year in which the increase or decrease in liability arises on account of the fluctuation in the rate of exchange. Thus, the adjustments in the actual cost are to be made irrespective of the date of actual payment in foreign currency made by the assessee. This position also finds place in the clarification issued by the Ministry of Finance dated 4.1.1967 which inter alia reads as under: "2. The Government agrees that for the purposes of the calculation of depreciation allowance, the cost of capital assets imported before the date of devaluation should be written off to the extent of the full amount of the additional rupee liability incurred on account of devaluation and not what is actually paid from year to year. The proposed legal provision in the matter is intended to be framed on this basis." (emphasis supplied) 32. One more aspect needs to be mentioned. Section 43(1) defines actual cost for the purpose of grant of depreciation etc. to mean "the actual cost of the assets to the assessee". Till the insertion of the unamended Section 43A there was no provision in the Income-tax Act for adjustment of the actual cost which was fixed once and for all, at the time of acquisition of the asset. Accordingly, no adjustment could be made in the actual cost of the assets for purposes of grant of depreciation for any increase/decrease of liability subsequently arising due to exchange fluctuation. Consequently, Section 43A was introduced in the Act by Finance Act, 1967 w.e.f. 1.4.1967 in the above terms to provide for adjustment in the actual cost of assets pursuant to change in the foreign currency exchange rates. As a consequence of the insertion of the said section, it became possible to adjust the increase/decrease in liability relating to acquisition of capital assets on account of exchange rate fluctuation, in the actual cost of the assets acquired in foreign currency and for, inter alia, depreciation to be allowed with reference to such increased/decreased cost. This position is also made clear by Circular No. 5-P dated 9.10.1967 issued by CBDT. One more point needs to be mentioned. Section 43A (unamended) corresponds to para 10 of AS-11 similarly providing for adjustment in the carrying cost of fixed assets acquired in foreign currency, due to foreign exchange fluctuation at each balance sheet date. The relevant para reads as follows: "10. Exchange differences arising on repayment of liabilities incurred for the purpose of acquiring fixed assets, which carried in terms of historical cost, should be adjusted in the carrying amount of the respective fixed assets. The carrying amount of such fixed assets should, to the extent not already so adjusted or otherwise accounted for, also be adjusted to account for any increase or decrease in the liability of the enterprise, as expressed in the reporting currency by applying the closing rate, for making payment towards the whole or a part of the cost of the assets or for repayment of the whole or a part of the monies borrowed by the enterprise from any person, directly or indirectly, in foreign currency specifically for the purpose of acquiring those assets." 33. As stated above, what triggers the adjustment in the actual cost of the assets, in terms of unamended Section 43A of the 1961 Act is the change in the rate of exchange subsequent to the acquisition of asset in foreign currency. The section mandates that at any time there is change in the rate of exchange, the same may be given effect to by way of adjustment of the carrying cost of the fixed assets acquired in foreign currency. But for Section 43A which corresponds to para 10 of AS-11 such adjustment in the carrying amount of the fixed assets was not possible, particularly in the light of Section 43(1). The unamended Section 43A nowhere required as condition precedent for making necessary adjustment in the carrying amount of the fixed asset that there should be actual payment of the increased/decreased liability as a consequence of the exchange variation. The words used in the unamended Section 43A were "for making payment" and not "on payment" which is now brought in by amendment to Section 43A vide Finance Act, 2002.34. Lastly, we are of the view that amendment of Section 43A by the Finance Act, 2002 w.e.f. 1.4.2003 is amendatory and not clarificatory. The amendment is in complete substitution of the section as it existed prior thereto. Under the unamended Section 43A adjustment to the actual cost took place on the happening of change in the rate of exchange whereas under the amended Section 43A the adjustment in the actual cost is made on cash basis. This is indicated by the words "at the time of making payment". In other words, under the unamended Section 43A, "actual payment" was not a condition precedent for making necessary adjustment in the carrying cost of the fixed asset acquired in foreign currency, however, under amended Section 43A w.e.f. 1.4.2003 such actual payment of the decreased/enhanced liability is made a condition precedent for making adjustment in the carrying amount of the fixed asset. This indicates a complete structural change brought about in Section 43A vide Finance Act, 2002. Therefore, the amended section is amendatory and not clarificatory in nature. Conclusion:
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43A of the 1961 Act. At this stage, we are concerned only with para 9 which deals with revenue items. Para 9 ofrecognises exchange differences as income or expense. In cases where, e.g., the rate of dollar risesthe Indian rupee, there is an expense during that period. The important point to be noted is thatstipulates effect of changes in exchange ratemonetary items denominated in a foreign currency to be taken into account for giving accounting treatment on the balance sheet date. Therefore, an enterprise has to report the outstanding liability relating to import of raw materials using closing rate of exchange. Any difference, loss or gain, arising on conversion of the said liability at the closing rate, should be recognized in the P&L account for the reporting period.19. A company imports raw material worth US $ 250000 on 15.1.2002 when the exchange rate was Rs. 46 per US $. The company records the transaction at that rate. The payment for the imports is made on 15.4.2002 when the exchange rate is Rs. 49 per US $. However, on the balance sheet date, 31.3.2002, the rate of exchange is Rs. 50 per US $. In such a case, in terms ofthe effect of the exchange difference has to be taken into P&L account. Sundry creditors is a monetary item and hence such item has to be valued at the closing rate, i.e. Rs. 50 at 31.3.2002, irrespective of the payment for the sale subsequently at a lower rate. The difference of Rs. 4per US $ is to be shown as an exchange loss in the P&L account and is not to be adjusted against the cost of raw materials.One more aspect needs to be mentioned. Section 43(1) defines actual cost for the purpose of grant of depreciation etc. to mean "the actual cost of the assets to the assessee". Till the insertion of the unamended Section 43A there was no provision in theAct for adjustment of the actual cost which was fixed once and for all, at the time of acquisition of the asset. Accordingly, no adjustment could be made in the actual cost of the assets for purposes of grant of depreciation for any increase/decrease of liability subsequently arising due to exchange fluctuation. Consequently, Section 43A was introduced in the Act by Finance Act, 1967 w.e.f. 1.4.1967 in the above terms to provide for adjustment in the actual cost of assets pursuant to change in the foreign currency exchange rates. As a consequence of the insertion of the said section, it became possible to adjust the increase/decrease in liability relating to acquisition of capital assets on account of exchange rate fluctuation, in the actual cost of the assets acquired in foreign currency and for, inter alia, depreciation to be allowed with reference to such increased/decreased cost. This position is also made clear by Circular No.dated 9.10.1967 issued by CBDT. One more point needs to be mentioned. Section 43A (unamended) corresponds to para 10 ofsimilarly providing for adjustment in the carrying cost of fixed assets acquired in foreign currency, due to foreign exchange fluctuation at each balance sheet date. The relevant para reads asExchange differences arising on repayment of liabilities incurred for the purpose of acquiring fixed assets, which carried in terms of historical cost, should be adjusted in the carrying amount of the respective fixed assets. The carrying amount of such fixed assets should, to the extent not already so adjusted or otherwise accounted for, also be adjusted to account for any increase or decrease in the liability of the enterprise, as expressed in the reporting currency by applying the closing rate, for making payment towards the whole or a part of the cost of the assets or for repayment of the whole or a part of the monies borrowed by the enterprise from any person, directly or indirectly, in foreign currency specifically for the purpose of acquiring those assets.As stated above, what triggers the adjustment in the actual cost of the assets, in terms of unamended Section 43A of the 1961 Act is the change in the rate of exchange subsequent to the acquisition of asset in foreign currency. The section mandates that at any time there is change in the rate of exchange, the same may be given effect to by way of adjustment of the carrying cost of the fixed assets acquired in foreign currency. But for Section 43A which corresponds to para 10 ofsuch adjustment in the carrying amount of the fixed assets was not possible, particularly in the light of Section 43(1). The unamended Section 43A nowhere required as condition precedent for making necessary adjustment in the carrying amount of the fixed asset that there should be actual payment of the increased/decreased liability as a consequence of the exchange variation. The words used in the unamended Section 43A were "for making payment" and not "on payment" which is now brought in by amendment to Section 43A vide Finance Act, 2002.34. Lastly, we are of the view that amendment of Section 43A by the Finance Act, 2002 w.e.f. 1.4.2003 is amendatory and not clarificatory. The amendment is in complete substitution of the section as it existed prior thereto. Under the unamended Section 43A adjustment to the actual cost took place on the happening of change in the rate of exchange whereas under the amended Section 43A the adjustment in the actual cost is made on cash basis. This is indicated by the words "at the time of making payment". In other words, under the unamended Section 43A, "actual payment" was not a condition precedent for making necessary adjustment in the carrying cost of the fixed asset acquired in foreign currency, however, under amended Section 43A w.e.f. 1.4.2003 such actual payment of the decreased/enhanced liability is made a condition precedent for making adjustment in the carrying amount of the fixed asset. This indicates a complete structural change brought about in Section 43A vide Finance Act, 2002. Therefore, the amended section is amendatory and not clarificatory in nature.
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Harla Vs. The State Of Rajasthan | which such knowledge can be acquired with the exercise of due and reasonable diligence. The thought that a decision reached in the secret recesses of a chamber to which the public have no access and to which even their accredited representatives have no access and of which they can normally know nothing, can nevertheless affect their lives, liberty and property by the mere passing of a Resolution without anything more is abhorrent to civilised man. It shocks his conscience. In the absence therefore of any law, rule, regulation or custom, we hold that a law cannot come into being in this way. Promulgation or publica- tion of some reasonable sort is essential. In England the rule is that Acts of Parliament become law from the first moment of the day on which they receive the Royal assent, but Royal Proclamations only when actually published in the official Gazette. See footnote (a) to paragraph 776. page 601, of Halsburys Laws of England (Hailsham edition), Volume VI and 32 Halsburys Laws of England (Hailsham edition), page 150 note (r). But even there it was necessary to enact a special Act of Parliament to enable such proclamations to become law by publication in the Gazette though a Royal Proclamation is the highest kind of law, other than an Act of Parliament, known to the Brit- ish Constitution; and even the publication in the London Gazette will not make the proclamation valid in Scotland nor will publication in the Edinburgh Gazette make it valid for England. It is clear therefore that the mere enacting or signing of a Royal Proclamation is not enough. There must be publication before it can become law, and in England the nature of the publication has to be prescribed by an Act of Parliament.6. The Act of Parliament regulating this matter is the Crown Office Act of 1877 (40 and 41 Victoria Ch. 41). That Act, in addition to making provision for publication in certain official Gazettes, also provides for the making of rules by Order in Council for the best means of making Proclamations known to the public. The British Parliament has therefore insisted in the Crown Office Act that not only must there be publication in the Gazette but in addition there must be other modes of publication, if an Order in Council so directs, so that the people at large may know what these special laws are. The Crown Office Act directs His Majesty in Council carefully to consider the best mode of making these laws known to the public and empowers that body to draw up rules for the same and embody them in an Order in Council. We take it that if these Proclamations are not published strictly in accordance with the rules so drawn up, they will not be valid law. The principle underlying this question has been judicially considered in England. For example, on a somewhat lower plane, it was held in Johnson v. Sargant ([1918] 1 K.B. 10I; 67 L.J.K.B. 122.) that an Order of the Food Controller under the Beans, Peas and Pulse (Requisition) Order, 1917 does not become operative until it is made known to the public, and the difference between an Order of that kind and an Act of the British Parliament is Stressed. The difference is obvious. Acts of the British Parliament are publicly enacted. The debates are open to the public and the Acts are passed by the accredited representatives of the people who in theory can be trusted to see that their constituents know what has been done. They also re- ceive wide publicity in papers and, now, over the wireless. Not so Royal Proclamations and Orders of a Food Controller and so forth. There must therefore be promulgation and publication in their cases. The mode of publication can vary; what is a good method in one country may not necessarily be the best in another. But reasonable publication of some sort there must be.7. Nor is the principle peculiar to England. It was applied to France by the Code Napoleon, the first Article of which states that the laws are executory "by virtue of the promulgation thereof" and that they shall come into effect "from the moment at which their promulgation can have been known." So also it has been applied in India in, for instance, matters arising under Rule 119 of the Defence of India Rules. See, for example, Crown v. Manghumal Tekuml (I.L.R. 1944 Karachi 107), Shakoor v. King Emperor (I.L.R. 1944 Nag. 150.) and Babulal v. King Emperor (I.L.R. 1945Nag. 762.). It is true none of these cases is analogous to the one before us but they are only particular applications of a deeper rule which is rounded on natural justice.The Council of Ministers which passed the Jaipur Opium Act was not a sovereign body nor did it function of its own right. It was brought into being by the Crown Representative, and the Jaipur Gazette Notification dated the 11th August, 1923, defined and limited its powers. We are entitled therefore to import into this matter consideration of the principles and notions of natural justice which underlie the British Constitution, for it is inconceivable that a representative of His Britannic Majesty could have contem- plated the creation of a body which could wield powers so abhorrent to the fundamental principles of natural justice which all freedom loving peoples share. We hold that, in the absence of some specific law or custom to the contrary, a mere resolution of a Council of Ministers in the Jaipur State without further publication or promulgation would not be sufficient to make a law operative.8. It is necessary to consider another point. It was urged that section 3(b) of the Jaipur Laws Act of 1923 saved all regulations then in force from the necessity of publication in the Gazette. That may be so, but the Act only saved laws which were valid at the time and not resolutions which had never acquired the force of law.9. | 1[ds]We do not know what laws were operative in Jaipur regarding the coming into force of an enactment in that State. We were not shown any, nor was our attention drawn to any custom which could be said to govern the matter. In the absence of any special law or custom, we are of opinion that it would be against the principles of natural justice to permit the subjects of a State to be punished or penalised by laws of which they had no knowledge and of which they could not even with the exercise of reasonable diligence have acquired any knowledge. Natural justice requires that before a law can become operative it must be promulgated or published. It must be broadcast in some recognisable way so that all men may know what it is; or, at the very least, there must be some special rule or regulation or customary channel by or through which such knowledge can be acquired with the exercise of due and reasonable diligence. The thought that a decision reached in the secret recesses of a chamber to which the public have no access and to which even their accredited representatives have no access and of which they can normally know nothing, can nevertheless affect their lives, liberty and property by the mere passing of a Resolution without anything more is abhorrent to civilised man. It shocks his conscience. In the absence therefore of any law, rule, regulation or custom, we hold that a law cannot come into being in this way. Promulgation or publica- tion of some reasonable sort is essential. In England the rule is that Acts of Parliament become law from the first moment of the day on which they receive the Royal assent, but Royal Proclamations only when actually published in the official Gazette. See footnote (a) to paragraph 776. page 601, of Halsburys Laws of England (Hailsham edition), Volume VI and 32 Halsburys Laws of England (Hailsham edition), page 150 note (r). But even there it was necessary to enact a special Act of Parliament to enable such proclamations to become law by publication in the Gazette though a Royal Proclamation is the highest kind of law, other than an Act of Parliament, known to the Brit- ish Constitution; and even the publication in the London Gazette will not make the proclamation valid in Scotland nor will publication in the Edinburgh Gazette make it valid for England. It is clear therefore that the mere enacting or signing of a Royal Proclamation is not enough. There must be publication before it can become law, and in England the nature of the publication has to be prescribed by an Act ofCouncil of Ministers which passed the Jaipur Opium Act was not a sovereign body nor did it function of its own right. It was brought into being by the Crown Representative, and the Jaipur Gazette Notification dated the 11th August, 1923, defined and limited its powers. We are entitled therefore to import into this matter consideration of the principles and notions of natural justice which underlie the British Constitution, for it is inconceivable that a representative of His Britannic Majesty could have contem- plated the creation of a body which could wield powers so abhorrent to the fundamental principles of natural justice which all freedom loving peoples share. We hold that, in the absence of some specific law or custom to the contrary, a mere resolution of a Council of Ministers in the Jaipur State without further publication or promulgation would not be sufficient to make a law operative. | 1 | 1,963 | 650 | ### Instruction:
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which such knowledge can be acquired with the exercise of due and reasonable diligence. The thought that a decision reached in the secret recesses of a chamber to which the public have no access and to which even their accredited representatives have no access and of which they can normally know nothing, can nevertheless affect their lives, liberty and property by the mere passing of a Resolution without anything more is abhorrent to civilised man. It shocks his conscience. In the absence therefore of any law, rule, regulation or custom, we hold that a law cannot come into being in this way. Promulgation or publica- tion of some reasonable sort is essential. In England the rule is that Acts of Parliament become law from the first moment of the day on which they receive the Royal assent, but Royal Proclamations only when actually published in the official Gazette. See footnote (a) to paragraph 776. page 601, of Halsburys Laws of England (Hailsham edition), Volume VI and 32 Halsburys Laws of England (Hailsham edition), page 150 note (r). But even there it was necessary to enact a special Act of Parliament to enable such proclamations to become law by publication in the Gazette though a Royal Proclamation is the highest kind of law, other than an Act of Parliament, known to the Brit- ish Constitution; and even the publication in the London Gazette will not make the proclamation valid in Scotland nor will publication in the Edinburgh Gazette make it valid for England. It is clear therefore that the mere enacting or signing of a Royal Proclamation is not enough. There must be publication before it can become law, and in England the nature of the publication has to be prescribed by an Act of Parliament.6. The Act of Parliament regulating this matter is the Crown Office Act of 1877 (40 and 41 Victoria Ch. 41). That Act, in addition to making provision for publication in certain official Gazettes, also provides for the making of rules by Order in Council for the best means of making Proclamations known to the public. The British Parliament has therefore insisted in the Crown Office Act that not only must there be publication in the Gazette but in addition there must be other modes of publication, if an Order in Council so directs, so that the people at large may know what these special laws are. The Crown Office Act directs His Majesty in Council carefully to consider the best mode of making these laws known to the public and empowers that body to draw up rules for the same and embody them in an Order in Council. We take it that if these Proclamations are not published strictly in accordance with the rules so drawn up, they will not be valid law. The principle underlying this question has been judicially considered in England. For example, on a somewhat lower plane, it was held in Johnson v. Sargant ([1918] 1 K.B. 10I; 67 L.J.K.B. 122.) that an Order of the Food Controller under the Beans, Peas and Pulse (Requisition) Order, 1917 does not become operative until it is made known to the public, and the difference between an Order of that kind and an Act of the British Parliament is Stressed. The difference is obvious. Acts of the British Parliament are publicly enacted. The debates are open to the public and the Acts are passed by the accredited representatives of the people who in theory can be trusted to see that their constituents know what has been done. They also re- ceive wide publicity in papers and, now, over the wireless. Not so Royal Proclamations and Orders of a Food Controller and so forth. There must therefore be promulgation and publication in their cases. The mode of publication can vary; what is a good method in one country may not necessarily be the best in another. But reasonable publication of some sort there must be.7. Nor is the principle peculiar to England. It was applied to France by the Code Napoleon, the first Article of which states that the laws are executory "by virtue of the promulgation thereof" and that they shall come into effect "from the moment at which their promulgation can have been known." So also it has been applied in India in, for instance, matters arising under Rule 119 of the Defence of India Rules. See, for example, Crown v. Manghumal Tekuml (I.L.R. 1944 Karachi 107), Shakoor v. King Emperor (I.L.R. 1944 Nag. 150.) and Babulal v. King Emperor (I.L.R. 1945Nag. 762.). It is true none of these cases is analogous to the one before us but they are only particular applications of a deeper rule which is rounded on natural justice.The Council of Ministers which passed the Jaipur Opium Act was not a sovereign body nor did it function of its own right. It was brought into being by the Crown Representative, and the Jaipur Gazette Notification dated the 11th August, 1923, defined and limited its powers. We are entitled therefore to import into this matter consideration of the principles and notions of natural justice which underlie the British Constitution, for it is inconceivable that a representative of His Britannic Majesty could have contem- plated the creation of a body which could wield powers so abhorrent to the fundamental principles of natural justice which all freedom loving peoples share. We hold that, in the absence of some specific law or custom to the contrary, a mere resolution of a Council of Ministers in the Jaipur State without further publication or promulgation would not be sufficient to make a law operative.8. It is necessary to consider another point. It was urged that section 3(b) of the Jaipur Laws Act of 1923 saved all regulations then in force from the necessity of publication in the Gazette. That may be so, but the Act only saved laws which were valid at the time and not resolutions which had never acquired the force of law.9.
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We do not know what laws were operative in Jaipur regarding the coming into force of an enactment in that State. We were not shown any, nor was our attention drawn to any custom which could be said to govern the matter. In the absence of any special law or custom, we are of opinion that it would be against the principles of natural justice to permit the subjects of a State to be punished or penalised by laws of which they had no knowledge and of which they could not even with the exercise of reasonable diligence have acquired any knowledge. Natural justice requires that before a law can become operative it must be promulgated or published. It must be broadcast in some recognisable way so that all men may know what it is; or, at the very least, there must be some special rule or regulation or customary channel by or through which such knowledge can be acquired with the exercise of due and reasonable diligence. The thought that a decision reached in the secret recesses of a chamber to which the public have no access and to which even their accredited representatives have no access and of which they can normally know nothing, can nevertheless affect their lives, liberty and property by the mere passing of a Resolution without anything more is abhorrent to civilised man. It shocks his conscience. In the absence therefore of any law, rule, regulation or custom, we hold that a law cannot come into being in this way. Promulgation or publica- tion of some reasonable sort is essential. In England the rule is that Acts of Parliament become law from the first moment of the day on which they receive the Royal assent, but Royal Proclamations only when actually published in the official Gazette. See footnote (a) to paragraph 776. page 601, of Halsburys Laws of England (Hailsham edition), Volume VI and 32 Halsburys Laws of England (Hailsham edition), page 150 note (r). But even there it was necessary to enact a special Act of Parliament to enable such proclamations to become law by publication in the Gazette though a Royal Proclamation is the highest kind of law, other than an Act of Parliament, known to the Brit- ish Constitution; and even the publication in the London Gazette will not make the proclamation valid in Scotland nor will publication in the Edinburgh Gazette make it valid for England. It is clear therefore that the mere enacting or signing of a Royal Proclamation is not enough. There must be publication before it can become law, and in England the nature of the publication has to be prescribed by an Act ofCouncil of Ministers which passed the Jaipur Opium Act was not a sovereign body nor did it function of its own right. It was brought into being by the Crown Representative, and the Jaipur Gazette Notification dated the 11th August, 1923, defined and limited its powers. We are entitled therefore to import into this matter consideration of the principles and notions of natural justice which underlie the British Constitution, for it is inconceivable that a representative of His Britannic Majesty could have contem- plated the creation of a body which could wield powers so abhorrent to the fundamental principles of natural justice which all freedom loving peoples share. We hold that, in the absence of some specific law or custom to the contrary, a mere resolution of a Council of Ministers in the Jaipur State without further publication or promulgation would not be sufficient to make a law operative.
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Hariprasad Shivshankar Shukla Vs. A.D. Divelkar | the intention of Congress at the dates the several Acts were passed, but the later Acts should also be regarded as legislative interpretations of the prior ones."This general rule is not an inflexible rule, and as stated in (1942) 315 U.S. 262 (L)"We are not limited to the lifeless words of the statute and formalistic canons of construction in our search of the intent of Congress (Parliament in our case) and in construing a statute, we may with propriety recur to the history of the times when it was passed."That history shows indubitably the aim and purpose of the enactment of S. 25-FF. As Lord Atiknson pointed out in his speech in 1928 A.C. 143 at p.164 (J),"an Act of Parliament does not after the law by merely betraying an erroneous opinion of it".Legislation founded on a mistaken or erroneous assumption has not the effect of making that the law which the legislature had erroneously assumed to be so. In the cases before us, the legislature proceeded on the basis of the judicial decisions then available to it, and on that basis enacted S. 25-FF. We do not think that the general principle of parliamentary exposition or subsequent legislation as an aid to construction of prior Acts can be called in aid for construing the definition clause and S.25-F of the Act.19. For the reasons given above, we hold, contrary to the view expressed by the Bombay High Court,that retrenchment as defined in S.2 (00) and as used in S.25-F has no wider meaning than the ordinary, accepted connotation of the word: it means the discharge of surplus labour or staff by the employer for any reasons whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, and it has no application where the services of all workmen have been terminated by the employer on a real and bona fide closure of business as in the case of Shri Dinesh Mills Ltd. or where the services of all workmen have been terminated by the employer on the business or undertaking being taken over by another employer in circumstances like those of the Railway Company.Mr. Mehta, appearing for respondents Nos. 4 and 5 in Civil Appeal No.105 of 1956, tried to make a distinction between transfer of ownership with continuation of employment (which according to him did not come within the definition) and termination of service on closure of business. There is in fact a distinction between transfer of business and closure of business; but so far as the definition clause is concerned, both stand on the same footing if they involve termination of service of the workmen by the employer for any reason whatsoever, otherwise than as a punishment by way of disciplinary action. On our interpretation, in no case is there any retrenchment, unless there is discharge of surplus labour or staff in a continuing or running industry.20. We have so far dealt with the question of construction of the definition clause and S.25-F of the Act. On behalf of the appellants a further question as to the constitutional validity of S.25-F has been raised. The argument on that question has proceeded from two points of view: one of which is based on the point of view that retrenchment includes termination of service on closure of business and the other even in respect of running or continuing business. Under Act 19 (1), sub-cls. (f) and (g) of the Constitution, all citizens have the right to acquire, hold and dispose of property and to practice any profession, or to carry on any occupation, trade or business. Under cls.(5) and (6) of the said Article, the right is, inter alia, subject to reasonable restrictions in the interests of the general public. The right to carry on a business, it is contended, has three facets - (a) the right to start a business, (b) the right to continue a business and (c) the right to close a business. Section 25-F of the Act, it is argued, imposes a restriction on that right, if the section is so widely interpreted as to include a closure of business. The restriction, it is submitted, is not a reasonable restriction in the interests of the general public, because (a) it is unrelated to the capacity of the employer to pay and (b) unrelated to the needs of the employee. From the other point of view, the argument is that even in respect of a running or continuing industry, S.25-F imposes an unreasonable restriction. Reasonableness, it is submitted, has to be considered with regard to the object of the legislation and if the direct and immediate object of S. 25-F is relief against involuntary unemployment, then the restriction imposed is excessive, because a provision for such relief unrelated to the period of unemployment and other relevant factors is over-simplification of a complex problem. Such over simplification, it is stated, itself amounts to an unreasonable restriction.21. On the construction which we have adopted of the definition clause and of S.25-F of the Act, we are relieved of the task of making any final pronouncement on this constitutional question. On our construction, S.25-F has no application to a closed or dead industry and the constitutional arguments based on a different construction need not be considered in these appeals. So far as a running or continuing industry is concerned, an obvious answer may be that unemployment relief is not the only purpose or object of S.25-F. We have pointed out earlier that it is reasonable to assume that standardisation of retrenchment compensation and doing away with a perplexing variety of factors for granting retrenchment compensation may well have been the purposes of S.25-F though the basic consideration must have been the granting of unemployment relief. However, on our view of the construction of S.25-F, no compensation need be paid by the appellants in the two appeals. It is unnecessary therefore to decide whether, in other cases of a different character, S. 25-F imposes a reasonable restriction or not. | 1[ds]In our opinion it does. When a portion of the staff or labour force is discharged as surplusage in a continuing business, there are (a) termination of the service of a workman; (b) by the employer; (c) for any reason whatsoever; and (d) otherwise than as a punishment inflicted by way of disciplinaryagree that the adoption of the ordinary meaning gives to the expression for any reason whatsoever a somewhat narrower scope; one may say that it gets a colour from the context in which the expression occurs; but we do not agree that it amounts to importing new words in the definition. What after all is the meaning of the expression for any reason whatsoever? When a portion of the staff or labour force is discharge as surplusage in a running or continuing business, the termination of service which follows may be due to a variety of reasons; eg. for economy, rationalisation in industry, installation of a new labour saving machinery etc. The legislature in using the expression, for any reason whatsoever says in effect: "It does not matter why you are discharging the surplus; if the other requirements of the definition are fulfilled, then it is retrenchment". In the absence of any compelling words to indicate, that the intention was even to include a bona fide closure of the whole business, it would, we think, be divorcing the expression altogether from its context to give, it such a wide meaning as is contended for by learned counsel for the respondents. What is being defined is retrenchment, and that is the context of the definition. It is true that an artificial definition may include a meaning different from or in excess of the ordinary acceptation of the word which is the subject of definition but there must then be compelling words to show that such a meaning different from or in excess of the ordinary meaning is intended.Where, within the framework of the ordinary acceptation of the word, every single requirement of the definition clause is fulfilled, it would be wrong to take the definition as destroying the essential meaning of the wordview of these observations, it would be against the entire scheme of the Act to give the definition clause relating to retrenchment such a meaning as would include within the definition termination of service of all workmen by the employer when the business itself ceases to exist. Learned counsel for the appellants in the p73 two appeals have pointed out that the definition clause is inartistically drawn up and sub-cls. (a) and (b) of S. 2 (00) are not easily intelligible with reference to one of the essential requirements of the definition; namely, that the termination of service of the workman must be by the employer. It has been submitted that voluntary retirement of the workman cannot be termination of service by the employer.We do not, however, think that sub-cls. (a), (b) and (c) are conclusive of the question before us; they, no doubt apply to a running or continuing business only, but whether inserted by way of abundant caution or on account of excessive anxiety for clarity, they merely exclude certain categories of termination of service from the ambit of the definition. They do not necessarily show what is to be included within theagree that if it is conceded that definition clause includes cases closure of business, no difficulty is presented by Ss. 25-G andpoint to be emphasised in that connection is that there is no provision (except perhaps S 25-FF inserted in 1956 by Act 41 of 1956 to which we shall presently refer) which can be said to bring a closed or dead industry within the purview of the Act. The provisions of the Act, almost in their entirety, deal with an existing or continuing industry. All the provisions relating to lay off in Ss. 25-A to 25-E are also inappropriate in a deadthink that no such compelling reasons are available from the provisions of the Act; on the contrary, they point really one way - that the Act contemplates an existing or continuing industry and not a deadclosely examined, none of those decisions show, however, that discharge of workmen on bona fide closure of business was held to fall within the meaning of normalconsider it unnecessary to examine all the decisions on this point and it is enough to indicate what we consider to be the correct position in the matter. Retrenchment means discharge of surplus workmen in an existing or continuing business; it had acquired no special meaning so as to include discharge of workmen onbona fideclosure of business, though a number of Labour Appellate Tribunals awarded compensation to workmen on closure of business as an equitable relief for a variety of reasons.It is reasonable to assume that in enacting S. 25-F, the legislature standardised the payment of compensation to workmen retrenched in the normal or ordinary sense in an existing or continuing industry; the legislature did away with the perplexing variety of factors for determining the appropriate relief in such cases and adopted a simple yard stick of the length of service of the retrenched workmen. If the intention of the legislature was to given statutory effect to those decisions which awarded compensation on real andbona fideclosure of business, the legislature would have said so instead of being content by merely adding a definition clause, every requirement of which is fulfilled by the ordinary, accepted meaning of the wordagree with learned counsel for the appellants that the aim or object of the enactment was to supersede partially the effect of the aforesaid judicial decisions, at least with regard to the urgent matter of charge of ownership or management of a business undertaking which is of quite frequent occurrence,rather than parliamentary exposition of the pre-existing law, the general question of closure of business, of a lesser degree of urgency, was naturally left to be dealt with, if necessary, after the appeals had been disposedare fortified in this view by an examination of the provisions of the Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956. Be it noted that this Act was passed on August 28,1956-only about seven days before the enactment of S.25-FF. Section 29 of the Industrial Disputes (Amendment and Miscellaneous Provisions) Act 1956, inserts new schedules to the Act, and item 10 of the Third Schedule (Matters within the jurisdiction of Industrial Tribunals) is : "Retrenchment of workmen and closure of establishment"; in the Fourth Schedule, item 10 is: "Rationalisation, standardisation or improvement of plant or technique which is likely to lead to retrenchment of workmen." It is true that these new Schedules have not yet come into force, but the wording of the items mentioned therein shows that the legislature clearly envisaged a distinction between retrenchment and closure and retrenchment did not include closure of business; item 10 of the Fourth Schedule almost clinches the issue, because it shows how retrenchment of surplus labour may occur in a running industry. If we are to choose between the two amending Acts of 1956 on the point of parliamentary exposition, we unhesitatingly hold that the Industrial Disputes Amendment and Miscellaneous Provisions Act, 1956 (Act 36 of 1956) is more in the nature of parliamentary exposition than the Industrial Disputes (Amendment) Act, 1956 (Act 41 of 1956) which merely supersedes the effect of certain judicial decisions. We are aware that on the narrower interpretation of the definition clause on the basis of the ordinary, accepted connotation of retrenchment, S. 25-F will apply to a continuing or running business only and S. 25-FF will become largely unnecessary. We do not think that consideration need cause any difficulty; the judicial decisions on the basis of which S.25-FF was enacted being held to be erroneous by us, no hardship is caused if S. 25-FF is rendered superfluous, because its aim is served by the correct interpretation now given of the definition clause and of the provisions of S. 25-F, both of which are on that interpretation brought into harmony with the rest of thefounded on a mistaken or erroneous assumption has not the effect of making that the law which the legislature had erroneously assumed to be so. In the cases before us, the legislature proceeded on the basis of the judicial decisions then available to it, and on that basis enacted S. 25-FF. We do not think that the general principle of parliamentary exposition or subsequent legislation as an aid to construction of prior Acts can be called in aid for construing the definition clause and S.25-F of the Act.19. For the reasons given above, we hold, contrary to the view expressed by the Bombay High Court,that retrenchment as defined in S.2 (00) and as used in S.25-F has no wider meaning than the ordinary, accepted connotation of the word: it means the discharge of surplus labour or staff by the employer for any reasons whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, and it has no application where the services of all workmen have been terminated by the employer on a real and bona fide closure of business as in the case of Shri Dinesh Mills Ltd. or where the services of all workmen have been terminated by the employer on the business or undertaking being taken over by another employer in circumstances like those of the Railway Company.Mr. Mehta, appearing for respondents Nos. 4 and 5 in Civil Appeal No.105 of 1956, tried to make a distinction between transfer of ownership with continuation of employment (which according to him did not come within the definition) and termination of service on closure of business. There is in fact a distinction between transfer of business and closure of business; but so far as the definition clause is concerned, both stand on the same footing if they involve termination of service of the workmen by the employer for any reason whatsoever, otherwise than as a punishment by way of disciplinary action. On our interpretation, in no case is there any retrenchment, unless there is discharge of surplus labour or staff in a continuing or running industry.On the construction which we have adopted of the definition clause and of S.25-F of the Act, we are relieved of the task of making any final pronouncement on this constitutional question. On our construction, S.25-F has no application to a closed or dead industry and the constitutional arguments based on a different construction need not be considered in these appeals. So far as a running or continuing industry is concerned, an obvious answer may be that unemployment relief is not the only purpose or object of S.25-F. We have pointed out earlier that it is reasonable to assume that standardisation of retrenchment compensation and doing away with a perplexing variety of factors for granting retrenchment compensation may well have been the purposes of S.25-F though the basic consideration must have been the granting of unemployment relief. However, on our view of the construction of S.25-F, no compensation need be paid by the appellants in the two appeals. It is unnecessary therefore to decide whether, in other cases of a different character, S. 25-F imposes a reasonable restriction or not. | 1 | 7,931 | 2,049 | ### Instruction:
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the intention of Congress at the dates the several Acts were passed, but the later Acts should also be regarded as legislative interpretations of the prior ones."This general rule is not an inflexible rule, and as stated in (1942) 315 U.S. 262 (L)"We are not limited to the lifeless words of the statute and formalistic canons of construction in our search of the intent of Congress (Parliament in our case) and in construing a statute, we may with propriety recur to the history of the times when it was passed."That history shows indubitably the aim and purpose of the enactment of S. 25-FF. As Lord Atiknson pointed out in his speech in 1928 A.C. 143 at p.164 (J),"an Act of Parliament does not after the law by merely betraying an erroneous opinion of it".Legislation founded on a mistaken or erroneous assumption has not the effect of making that the law which the legislature had erroneously assumed to be so. In the cases before us, the legislature proceeded on the basis of the judicial decisions then available to it, and on that basis enacted S. 25-FF. We do not think that the general principle of parliamentary exposition or subsequent legislation as an aid to construction of prior Acts can be called in aid for construing the definition clause and S.25-F of the Act.19. For the reasons given above, we hold, contrary to the view expressed by the Bombay High Court,that retrenchment as defined in S.2 (00) and as used in S.25-F has no wider meaning than the ordinary, accepted connotation of the word: it means the discharge of surplus labour or staff by the employer for any reasons whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, and it has no application where the services of all workmen have been terminated by the employer on a real and bona fide closure of business as in the case of Shri Dinesh Mills Ltd. or where the services of all workmen have been terminated by the employer on the business or undertaking being taken over by another employer in circumstances like those of the Railway Company.Mr. Mehta, appearing for respondents Nos. 4 and 5 in Civil Appeal No.105 of 1956, tried to make a distinction between transfer of ownership with continuation of employment (which according to him did not come within the definition) and termination of service on closure of business. There is in fact a distinction between transfer of business and closure of business; but so far as the definition clause is concerned, both stand on the same footing if they involve termination of service of the workmen by the employer for any reason whatsoever, otherwise than as a punishment by way of disciplinary action. On our interpretation, in no case is there any retrenchment, unless there is discharge of surplus labour or staff in a continuing or running industry.20. We have so far dealt with the question of construction of the definition clause and S.25-F of the Act. On behalf of the appellants a further question as to the constitutional validity of S.25-F has been raised. The argument on that question has proceeded from two points of view: one of which is based on the point of view that retrenchment includes termination of service on closure of business and the other even in respect of running or continuing business. Under Act 19 (1), sub-cls. (f) and (g) of the Constitution, all citizens have the right to acquire, hold and dispose of property and to practice any profession, or to carry on any occupation, trade or business. Under cls.(5) and (6) of the said Article, the right is, inter alia, subject to reasonable restrictions in the interests of the general public. The right to carry on a business, it is contended, has three facets - (a) the right to start a business, (b) the right to continue a business and (c) the right to close a business. Section 25-F of the Act, it is argued, imposes a restriction on that right, if the section is so widely interpreted as to include a closure of business. The restriction, it is submitted, is not a reasonable restriction in the interests of the general public, because (a) it is unrelated to the capacity of the employer to pay and (b) unrelated to the needs of the employee. From the other point of view, the argument is that even in respect of a running or continuing industry, S.25-F imposes an unreasonable restriction. Reasonableness, it is submitted, has to be considered with regard to the object of the legislation and if the direct and immediate object of S. 25-F is relief against involuntary unemployment, then the restriction imposed is excessive, because a provision for such relief unrelated to the period of unemployment and other relevant factors is over-simplification of a complex problem. Such over simplification, it is stated, itself amounts to an unreasonable restriction.21. On the construction which we have adopted of the definition clause and of S.25-F of the Act, we are relieved of the task of making any final pronouncement on this constitutional question. On our construction, S.25-F has no application to a closed or dead industry and the constitutional arguments based on a different construction need not be considered in these appeals. So far as a running or continuing industry is concerned, an obvious answer may be that unemployment relief is not the only purpose or object of S.25-F. We have pointed out earlier that it is reasonable to assume that standardisation of retrenchment compensation and doing away with a perplexing variety of factors for granting retrenchment compensation may well have been the purposes of S.25-F though the basic consideration must have been the granting of unemployment relief. However, on our view of the construction of S.25-F, no compensation need be paid by the appellants in the two appeals. It is unnecessary therefore to decide whether, in other cases of a different character, S. 25-F imposes a reasonable restriction or not.
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statutory effect to those decisions which awarded compensation on real andbona fideclosure of business, the legislature would have said so instead of being content by merely adding a definition clause, every requirement of which is fulfilled by the ordinary, accepted meaning of the wordagree with learned counsel for the appellants that the aim or object of the enactment was to supersede partially the effect of the aforesaid judicial decisions, at least with regard to the urgent matter of charge of ownership or management of a business undertaking which is of quite frequent occurrence,rather than parliamentary exposition of the pre-existing law, the general question of closure of business, of a lesser degree of urgency, was naturally left to be dealt with, if necessary, after the appeals had been disposedare fortified in this view by an examination of the provisions of the Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956. Be it noted that this Act was passed on August 28,1956-only about seven days before the enactment of S.25-FF. Section 29 of the Industrial Disputes (Amendment and Miscellaneous Provisions) Act 1956, inserts new schedules to the Act, and item 10 of the Third Schedule (Matters within the jurisdiction of Industrial Tribunals) is : "Retrenchment of workmen and closure of establishment"; in the Fourth Schedule, item 10 is: "Rationalisation, standardisation or improvement of plant or technique which is likely to lead to retrenchment of workmen." It is true that these new Schedules have not yet come into force, but the wording of the items mentioned therein shows that the legislature clearly envisaged a distinction between retrenchment and closure and retrenchment did not include closure of business; item 10 of the Fourth Schedule almost clinches the issue, because it shows how retrenchment of surplus labour may occur in a running industry. If we are to choose between the two amending Acts of 1956 on the point of parliamentary exposition, we unhesitatingly hold that the Industrial Disputes Amendment and Miscellaneous Provisions Act, 1956 (Act 36 of 1956) is more in the nature of parliamentary exposition than the Industrial Disputes (Amendment) Act, 1956 (Act 41 of 1956) which merely supersedes the effect of certain judicial decisions. We are aware that on the narrower interpretation of the definition clause on the basis of the ordinary, accepted connotation of retrenchment, S. 25-F will apply to a continuing or running business only and S. 25-FF will become largely unnecessary. We do not think that consideration need cause any difficulty; the judicial decisions on the basis of which S.25-FF was enacted being held to be erroneous by us, no hardship is caused if S. 25-FF is rendered superfluous, because its aim is served by the correct interpretation now given of the definition clause and of the provisions of S. 25-F, both of which are on that interpretation brought into harmony with the rest of thefounded on a mistaken or erroneous assumption has not the effect of making that the law which the legislature had erroneously assumed to be so. In the cases before us, the legislature proceeded on the basis of the judicial decisions then available to it, and on that basis enacted S. 25-FF. We do not think that the general principle of parliamentary exposition or subsequent legislation as an aid to construction of prior Acts can be called in aid for construing the definition clause and S.25-F of the Act.19. For the reasons given above, we hold, contrary to the view expressed by the Bombay High Court,that retrenchment as defined in S.2 (00) and as used in S.25-F has no wider meaning than the ordinary, accepted connotation of the word: it means the discharge of surplus labour or staff by the employer for any reasons whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, and it has no application where the services of all workmen have been terminated by the employer on a real and bona fide closure of business as in the case of Shri Dinesh Mills Ltd. or where the services of all workmen have been terminated by the employer on the business or undertaking being taken over by another employer in circumstances like those of the Railway Company.Mr. Mehta, appearing for respondents Nos. 4 and 5 in Civil Appeal No.105 of 1956, tried to make a distinction between transfer of ownership with continuation of employment (which according to him did not come within the definition) and termination of service on closure of business. There is in fact a distinction between transfer of business and closure of business; but so far as the definition clause is concerned, both stand on the same footing if they involve termination of service of the workmen by the employer for any reason whatsoever, otherwise than as a punishment by way of disciplinary action. On our interpretation, in no case is there any retrenchment, unless there is discharge of surplus labour or staff in a continuing or running industry.On the construction which we have adopted of the definition clause and of S.25-F of the Act, we are relieved of the task of making any final pronouncement on this constitutional question. On our construction, S.25-F has no application to a closed or dead industry and the constitutional arguments based on a different construction need not be considered in these appeals. So far as a running or continuing industry is concerned, an obvious answer may be that unemployment relief is not the only purpose or object of S.25-F. We have pointed out earlier that it is reasonable to assume that standardisation of retrenchment compensation and doing away with a perplexing variety of factors for granting retrenchment compensation may well have been the purposes of S.25-F though the basic consideration must have been the granting of unemployment relief. However, on our view of the construction of S.25-F, no compensation need be paid by the appellants in the two appeals. It is unnecessary therefore to decide whether, in other cases of a different character, S. 25-F imposes a reasonable restriction or not.
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V.A. Nair Vs. S Indian Hume Pipe Company | 53 ) THE Tribunal was, therefore, in error in allowing interest on the entire reserves without scrutinizing whether apart from the balance-sheet there was any proof that all the available reserves were in fact used as working capital. ( 54 ) COUNSEL for the company contends that amounts set apart for development rebate and depreciation and the current years profits amounting to Rs. 27,26,982 were at the disposal of the company, from which the capital assets could have been purchased and, therefore, it cannot be held that new additions to fixed assets of the value of Rs. 33,36,308 were made by utilising a part of the reserves. This process of reasoning is impermissible. The company must prove by satisfactory evidence, if that be its case, that the entire reserve was used as working capital. The workmen having contended that the new fixed assets were acquired from a part of the reserves, the company should have led evidence to prove that the entire reserve was used as working capital, from which it would have followed that no part of it was for acquisition of fixed assets. In "the Management of the Cannanore Spinning and Weaving Mills Ltd. v. The Secretary, cannanore Spinning and Weaving Mills Workers Union, [1960 - II L. L. J. 43]; A. I. R. 1961 S. C. 1194, the Supreme Court refused to analyse the statements in the balance-sheet for finding out what portion of the reserves was used as working capital, as there was no evidence to prove the correctness of those statements. ( 55 ) IN the instant case, Abhyankar, the head accountant of the company, filed an affidavit explaining how the company had calculated its reserves and stating that the "reserves have been fully utilised as working capital for the purpose of companys business", that the reserves "were actually utilised as working capital". ( 56 ) IN his cross-examination, Abhyankar was asked to explain what he understood by "reserves used as working capital". He replied that it was difficult to answer the question and that "as there are no agreed opinions on the meaning of the expression reserves used as working capital the best thing to do is to follow the precedent laid down by the Supreme court". This answer is not easy to comprehend. The witness was being specifically cross-examined regarding the utilisation of reserves and it was no answer that it was difficult to answer. ( 57 ) ABHYANKAR has admitted in his cross-examination that "it is not possible to say that the amounts which have been shown on the assets side in the balance-sheet (p. 7) have necessarily gone out of the reserves, part may be out of reserves, part out of borrowings and part may be out of current liabilities and provisions". One of the important items on page 7 of the balance-sheet is the "gross Block" which shows an addition of over thirty lakhs during the relevant year. The witness having admitted in terms that at least a part of the Gross Block may have been acquired in the relevant year with the help of reserves, the companys case that the entire reserve was used as working capital must necessarily fail. The Tribunal has reproduced in its judgment the portion from Abhyankars evidence which we have extracted above but it has patently overlooked its implications. ( 58 ) ONE of the reason that led the Tribunal to conclude that no part of the reserves need have been used for acquiring new fixed assets is that the figure of loans had remained static. If the loans remained unpaid, thought the Tribunal, reserves were available for being used as working capital as no part thereof was utilised for paying off loans. The Tribunal has fallen into an error in saying that "the figure of loans has remained static". The balance-sheet (page 6) shows that what had remained static was the figure (Rs. 29,18,000) of debenture loans only. The figure of unsecured loans had gone down from Rs. 97,44,554 to Rs. 85,31,200 which means that outstanding loans were paid off in the relevant year to the extent of about Rs. 12 lakhs. Abhyankars evidence is inadequate to show that no part of the reserves was utilised to pay off these borrowings. ( 59 ) THE only other effective reason on which the Tribunal has based its finding that it was not necessary for the company to use its reserves for buying new fixed assets is that "current assets have risen by Rs. 40,88,000 and current liabilities have also risen by Rs. 38,87,000 approximately". "there was, therefore, no need for the company to touch the reserves", says the tribunal. This process has been deprecated by the Supreme Court in the Aluminium Corporation case for a twofold reason. Firstly, "mere statements in the balance-sheet as regards current assets and current liabilities cannot be taken as sacrosanct" and secondly, that when the task is not to ascertain the total working capital of the concern but to find out what portion of the reserves has been used as working capital, it is necessary and proper that the company must lead good evidence to substantiate its case. ( 60 ) IF anything, the balance-sheet shows that in the relevant year, the borrowings were reduced by about Rs. 12 lakhs, investments went down by about Rs. 5 lakhs and there was no increase in capital. And yet a new Gross Block was acquired at a cost of over Rs. 30 lakhs. That would rather support the claim of the petitioners, if mere figures in the balance-sheet could prove anything, that the new acquisitions were made with the help of a part of the reserves. ( 61 ) WE are, therefore, of the opinion that in calculating reserves used as working capital, the sum of Rs. 33,86,308 must be deducted. That would mean that the company is entitled to claim Rs. 3,65,697 and not Rs. 5,01,147 by way of interest. The difference of Rs. 1,35,450 represents interest on Rs. 33,86,308. | 1[ds]( 13 ) WE cannot accede to the contention advanced by counsel for the petitioners that the company ought to have made provision for the payments of these bills in the previous years accounts. The companys accountant should have been asked by the petitioners why no such provision was made. No attempt having been made to show that such a provision was not made for extraneous reasons, we must accept the position reflected in the companys profit and loss account that the amount was properly expendable in the relevant year. As observed by the supreme Court in the Associated Cement Companies case (pp.(supra) :"the working of the formula begins with the figure of gross profits taken from the profit and loss account which are arrived at after payment of wages and dearness allowance to the employees and other items of expenditure. As a general rule the amount of gross profits thus ascertained is accepted without submitting the statement of the profit and loss account to a close scrutiny. " even where a debit item is challenged, one "must resist the temptation of dissecting thetoo minutely or of attempting to reconstruct it in any manner. It is only in glaring cases where the impugned item may be patently and obviously extraneous that a plea for its exclusion should be entertained. "(21 ) IT is not possible to agree that the long standing practice has in any sense matured into an obligation in the nature of a contract. The engineers might reasonably entertain the expectation that the company should reward them for their services but they have no legally enforceable claim in that22 ) IT is also incorrect that "in the very nature of things" the discretion of the directors could not be arbitrary. No such assumption could be made, particularly because, as the Tribunal itself says, the company was "reluctant for obvious reasons to disclose how the decision is reached by the director. " Abhyankar, the companys head accountant, has stated in his evidence that he did not know on what basis the directors decided to pay the commission to the engineers and that the basis was not mentioned in any resolution of the board of24 ) THESE figures cannot, on any view, justify the Tribunals finding that "the amount of commission has some proportion to the net profits earned. " In fact, the efficacy of this finding is destroyed by what the Tribunal says in the very next sentence : "the profits forwere the highest ever but the commission paid is not the highest but stands 5th in the order of payments made from4. "(28 ) AS indicated above, the company here placed no material before the Tribunal to show in what circumstances and for what purpose the commission was paid to the engineers, nor that it was a common practice to pay "commission" to a few chosen officers. The Supreme Court had before it the evidence of a witness called V. V. Dhume that "the payment of the service fee for the services of this nature is quite a common feature in India. " The directors here have not recorded that it was necessary in their opinion to pay the commission to the engineers and companys head accountant has protested in his evidence that he knows no details. We are, therefore, not substituting our judgment for that of the directors. The directors have not judged at31 ) AT the highest, the payment made to the engineers could be likened to bonus, assuming that it was made in recognition of their contribution to the profits earned by the company and that it was intended to enable them to bridge the gap between what they earned and what was necessary for a decent living. But then even bonus paid to workers has to be added back for the purpose of arriving at gross profits of the year, on the basis of which the available surplus is determined after deduction of prior charges. Much more so would an amount paid gratuitously to the companys officers have to be added back particularly when the basis of the payment remains undisclosed. Such payments cannot be permitted to affect the workmens claim to32 ) WE are, therefore, of the opinion that the amount of Rs. 1 lakh paid by way of engineers commission must be added back while calculating gross profits of the year. (iii) Foreign tourwe reject the contention. (iv) Reduction in valuation of closingon account of change in mode of38 ) WE are unable to accept this submission. Including estimated profits in the valuation ofis hardly ever accurate or satisfactory because the work is still to be completed and it is not easy to foresee what lies ahead. Strikes and lockouts may upset expectations. So may a rise in the cost of raw materials and no one can vouchsafe today what the cost is going to be tomorrow. The charge, therefore, that the company has adopted an artificial method of valuation is42 ) COUNSEL for the petitioners is, therefore, not right when he says that the reduction in the valuation of closingis comparable to cases in which a fortuitous loss has occurred to the employer. Counsel is right that if a fortuitous profit arises merely on account of a change in the system of accounting adopted by the employer that is extraneous income in which the workmen cannot participate : see Tata Oil Mills Co. Ltd. v. Its Workmen, [1959II L. L. J. 250]; A. I. R. 1959 S. C. 1065 at p. 1069, from which it must follow that a fortuitous loss cannot impair the workmens claim to bonus. But here the reduction in valuation is real and true, not fortuitous. It is not as if the real profits are reduced by an artificial system of43 ) WE see no substance in the contention that the new mode of valuation will affect prejudicially the workmens right to bonus. When the incomplete work on hand will be completed and the company will actually earn profits for the work done, the workmen will participate in those profits. Mr. Sule expressed an apprehension that some of the workmen who were in employment in the relevant years may go out when the work is completed and, therefore, they will not be able to share the profits to which they have contributed. But this is not an uncommon happening. For example, bad debts have to be deducted in the calculation of gross profits but if any of those amounts are recovered subsequently they have to be credited. Those workers who were in employment when debits became irrecoverable and had to be written off as bad may not be in employment when any of the bad debts are subsequently recovered and credited. But that cannot affect the right of the employer to a deduction of bad debts. The basic principle of the Full Bench formula is that for distribution of bonus the employer must have in his hands an available44 ) THE petitioners claim that the sum of Rs. 1,79,080 should be added back to the gross profits, therefore, fails. (v) The extent of reserves used as working capital and the interest payable50 ) THE Tribunal, it must be stated, has not recorded the finding that any part of the reserves was in fact used as working capital. It found that a sum of Rs. 1,39,63,309 was available to the company by way of reserves and that was thought sufficient to repell the contention of the petitioners that the entire available reserve was not used as working capital, that a part of it was used for buying new fixed assets. It is true that it would be unrealistic to insist on a mathematical proof regarding the actual utilisation of reserves as working capital but it is necessary to be conscious of the distinction between the mere availability of a fund and its actual user for a specific purpose. The Tribunal lost sight of that53 ) THE Tribunal was, therefore, in error in allowing interest on the entire reserves without scrutinizing whether apart from thethere was any proof that all the available reserves were in fact used as working57 ) ABHYANKAR has admitted in histhat "it is not possible to say that the amounts which have been shown on the assets side in the(p. 7) have necessarily gone out of the reserves, part may be out of reserves, part out of borrowings and part may be out of current liabilities and provisions". One of the important items on page 7 of theis the "gross Block" which shows an addition of over thirty lakhs during the relevant year. The witness having admitted in terms that at least a part of the Gross Block may have been acquired in the relevant year with the help of reserves, the companys case that the entire reserve was used as working capital must necessarily fail. The Tribunal has reproduced in its judgment the portion from Abhyankars evidence which we have extracted above but it has patently overlooked its58 ) ONE of the reason that led the Tribunal to conclude that no part of the reserves need have been used for acquiring new fixed assets is that the figure of loans had remained static. If the loans remained unpaid, thought the Tribunal, reserves were available for being used as working capital as no part thereof was utilised for paying off loans. The Tribunal has fallen into an error in saying that "the figure of loans has remained static". The(page 6) shows that what had remained static was the figure (Rs. 29,18,000) of debenture loans only. The figure of unsecured loans had gone down from Rs. 97,44,554 to Rs. 85,31,200 which means that outstanding loans were paid off in the relevant year to the extent of about Rs. 12 lakhs. Abhyankars evidence is inadequate to show that no part of the reserves was utilised to pay off these59 ) THE only other effective reason on which the Tribunal has based its finding that it was not necessary for the company to use its reserves for buying new fixed assets is that "current assets have risen by Rs. 40,88,000 and current liabilities have also risen by Rs. 38,87,000 approximately". "there was, therefore, no need for the company to touch the reserves", says the tribunal. This process has been deprecated by the Supreme Court in the Aluminium Corporation case for a twofold reason. Firstly, "mere statements in theas regards current assets and current liabilities cannot be taken as sacrosanct" and secondly, that when the task is not to ascertain the total working capital of the concern but to find out what portion of the reserves has been used as working capital, it is necessary and proper that the company must lead good evidence to substantiate its60 ) IF anything, theshows that in the relevant year, the borrowings were reduced by about Rs. 12 lakhs, investments went down by about Rs. 5 lakhs and there was no increase in capital. And yet a new Gross Block was acquired at a cost of over Rs. 30 lakhs. That would rather support the claim of the petitioners, if mere figures in thecould prove anything, that the new acquisitions were made with the help of a part of the61 ) WE are, therefore, of the opinion that in calculating reserves used as working capital, the sum of Rs. 33,86,308 must be deducted. That would mean that the company is entitled to claim Rs. 3,65,697 and not Rs. 5,01,147 by way of interest. The difference of Rs. 1,35,450 represents interest on Rs. 33,86,308. | 1 | 7,778 | 2,115 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
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53 ) THE Tribunal was, therefore, in error in allowing interest on the entire reserves without scrutinizing whether apart from the balance-sheet there was any proof that all the available reserves were in fact used as working capital. ( 54 ) COUNSEL for the company contends that amounts set apart for development rebate and depreciation and the current years profits amounting to Rs. 27,26,982 were at the disposal of the company, from which the capital assets could have been purchased and, therefore, it cannot be held that new additions to fixed assets of the value of Rs. 33,36,308 were made by utilising a part of the reserves. This process of reasoning is impermissible. The company must prove by satisfactory evidence, if that be its case, that the entire reserve was used as working capital. The workmen having contended that the new fixed assets were acquired from a part of the reserves, the company should have led evidence to prove that the entire reserve was used as working capital, from which it would have followed that no part of it was for acquisition of fixed assets. In "the Management of the Cannanore Spinning and Weaving Mills Ltd. v. The Secretary, cannanore Spinning and Weaving Mills Workers Union, [1960 - II L. L. J. 43]; A. I. R. 1961 S. C. 1194, the Supreme Court refused to analyse the statements in the balance-sheet for finding out what portion of the reserves was used as working capital, as there was no evidence to prove the correctness of those statements. ( 55 ) IN the instant case, Abhyankar, the head accountant of the company, filed an affidavit explaining how the company had calculated its reserves and stating that the "reserves have been fully utilised as working capital for the purpose of companys business", that the reserves "were actually utilised as working capital". ( 56 ) IN his cross-examination, Abhyankar was asked to explain what he understood by "reserves used as working capital". He replied that it was difficult to answer the question and that "as there are no agreed opinions on the meaning of the expression reserves used as working capital the best thing to do is to follow the precedent laid down by the Supreme court". This answer is not easy to comprehend. The witness was being specifically cross-examined regarding the utilisation of reserves and it was no answer that it was difficult to answer. ( 57 ) ABHYANKAR has admitted in his cross-examination that "it is not possible to say that the amounts which have been shown on the assets side in the balance-sheet (p. 7) have necessarily gone out of the reserves, part may be out of reserves, part out of borrowings and part may be out of current liabilities and provisions". One of the important items on page 7 of the balance-sheet is the "gross Block" which shows an addition of over thirty lakhs during the relevant year. The witness having admitted in terms that at least a part of the Gross Block may have been acquired in the relevant year with the help of reserves, the companys case that the entire reserve was used as working capital must necessarily fail. The Tribunal has reproduced in its judgment the portion from Abhyankars evidence which we have extracted above but it has patently overlooked its implications. ( 58 ) ONE of the reason that led the Tribunal to conclude that no part of the reserves need have been used for acquiring new fixed assets is that the figure of loans had remained static. If the loans remained unpaid, thought the Tribunal, reserves were available for being used as working capital as no part thereof was utilised for paying off loans. The Tribunal has fallen into an error in saying that "the figure of loans has remained static". The balance-sheet (page 6) shows that what had remained static was the figure (Rs. 29,18,000) of debenture loans only. The figure of unsecured loans had gone down from Rs. 97,44,554 to Rs. 85,31,200 which means that outstanding loans were paid off in the relevant year to the extent of about Rs. 12 lakhs. Abhyankars evidence is inadequate to show that no part of the reserves was utilised to pay off these borrowings. ( 59 ) THE only other effective reason on which the Tribunal has based its finding that it was not necessary for the company to use its reserves for buying new fixed assets is that "current assets have risen by Rs. 40,88,000 and current liabilities have also risen by Rs. 38,87,000 approximately". "there was, therefore, no need for the company to touch the reserves", says the tribunal. This process has been deprecated by the Supreme Court in the Aluminium Corporation case for a twofold reason. Firstly, "mere statements in the balance-sheet as regards current assets and current liabilities cannot be taken as sacrosanct" and secondly, that when the task is not to ascertain the total working capital of the concern but to find out what portion of the reserves has been used as working capital, it is necessary and proper that the company must lead good evidence to substantiate its case. ( 60 ) IF anything, the balance-sheet shows that in the relevant year, the borrowings were reduced by about Rs. 12 lakhs, investments went down by about Rs. 5 lakhs and there was no increase in capital. And yet a new Gross Block was acquired at a cost of over Rs. 30 lakhs. That would rather support the claim of the petitioners, if mere figures in the balance-sheet could prove anything, that the new acquisitions were made with the help of a part of the reserves. ( 61 ) WE are, therefore, of the opinion that in calculating reserves used as working capital, the sum of Rs. 33,86,308 must be deducted. That would mean that the company is entitled to claim Rs. 3,65,697 and not Rs. 5,01,147 by way of interest. The difference of Rs. 1,35,450 represents interest on Rs. 33,86,308.
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cannot impair the workmens claim to bonus. But here the reduction in valuation is real and true, not fortuitous. It is not as if the real profits are reduced by an artificial system of43 ) WE see no substance in the contention that the new mode of valuation will affect prejudicially the workmens right to bonus. When the incomplete work on hand will be completed and the company will actually earn profits for the work done, the workmen will participate in those profits. Mr. Sule expressed an apprehension that some of the workmen who were in employment in the relevant years may go out when the work is completed and, therefore, they will not be able to share the profits to which they have contributed. But this is not an uncommon happening. For example, bad debts have to be deducted in the calculation of gross profits but if any of those amounts are recovered subsequently they have to be credited. Those workers who were in employment when debits became irrecoverable and had to be written off as bad may not be in employment when any of the bad debts are subsequently recovered and credited. But that cannot affect the right of the employer to a deduction of bad debts. The basic principle of the Full Bench formula is that for distribution of bonus the employer must have in his hands an available44 ) THE petitioners claim that the sum of Rs. 1,79,080 should be added back to the gross profits, therefore, fails. (v) The extent of reserves used as working capital and the interest payable50 ) THE Tribunal, it must be stated, has not recorded the finding that any part of the reserves was in fact used as working capital. It found that a sum of Rs. 1,39,63,309 was available to the company by way of reserves and that was thought sufficient to repell the contention of the petitioners that the entire available reserve was not used as working capital, that a part of it was used for buying new fixed assets. It is true that it would be unrealistic to insist on a mathematical proof regarding the actual utilisation of reserves as working capital but it is necessary to be conscious of the distinction between the mere availability of a fund and its actual user for a specific purpose. The Tribunal lost sight of that53 ) THE Tribunal was, therefore, in error in allowing interest on the entire reserves without scrutinizing whether apart from thethere was any proof that all the available reserves were in fact used as working57 ) ABHYANKAR has admitted in histhat "it is not possible to say that the amounts which have been shown on the assets side in the(p. 7) have necessarily gone out of the reserves, part may be out of reserves, part out of borrowings and part may be out of current liabilities and provisions". One of the important items on page 7 of theis the "gross Block" which shows an addition of over thirty lakhs during the relevant year. The witness having admitted in terms that at least a part of the Gross Block may have been acquired in the relevant year with the help of reserves, the companys case that the entire reserve was used as working capital must necessarily fail. The Tribunal has reproduced in its judgment the portion from Abhyankars evidence which we have extracted above but it has patently overlooked its58 ) ONE of the reason that led the Tribunal to conclude that no part of the reserves need have been used for acquiring new fixed assets is that the figure of loans had remained static. If the loans remained unpaid, thought the Tribunal, reserves were available for being used as working capital as no part thereof was utilised for paying off loans. The Tribunal has fallen into an error in saying that "the figure of loans has remained static". The(page 6) shows that what had remained static was the figure (Rs. 29,18,000) of debenture loans only. The figure of unsecured loans had gone down from Rs. 97,44,554 to Rs. 85,31,200 which means that outstanding loans were paid off in the relevant year to the extent of about Rs. 12 lakhs. Abhyankars evidence is inadequate to show that no part of the reserves was utilised to pay off these59 ) THE only other effective reason on which the Tribunal has based its finding that it was not necessary for the company to use its reserves for buying new fixed assets is that "current assets have risen by Rs. 40,88,000 and current liabilities have also risen by Rs. 38,87,000 approximately". "there was, therefore, no need for the company to touch the reserves", says the tribunal. This process has been deprecated by the Supreme Court in the Aluminium Corporation case for a twofold reason. Firstly, "mere statements in theas regards current assets and current liabilities cannot be taken as sacrosanct" and secondly, that when the task is not to ascertain the total working capital of the concern but to find out what portion of the reserves has been used as working capital, it is necessary and proper that the company must lead good evidence to substantiate its60 ) IF anything, theshows that in the relevant year, the borrowings were reduced by about Rs. 12 lakhs, investments went down by about Rs. 5 lakhs and there was no increase in capital. And yet a new Gross Block was acquired at a cost of over Rs. 30 lakhs. That would rather support the claim of the petitioners, if mere figures in thecould prove anything, that the new acquisitions were made with the help of a part of the61 ) WE are, therefore, of the opinion that in calculating reserves used as working capital, the sum of Rs. 33,86,308 must be deducted. That would mean that the company is entitled to claim Rs. 3,65,697 and not Rs. 5,01,147 by way of interest. The difference of Rs. 1,35,450 represents interest on Rs. 33,86,308.
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