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Kingfisher Capital Clo Limited Vs. Commissioner of Income Tax and Others | from debentures"84. In para 2 of the judgment, the facts have been noted as also the submissions and thereafter, the discussion has been made in paras 7 and 8, which read as under:-"7. Section 2(42A) of the Act defines a short term capital asset and in case of shares where the assessee holds the said shares for 12 months or less than 12 months, it shall be short term capital asset. Clause (f) of Explanation I(i) to Section 2(42A) of the Act states that in case of capital asset being a financial asset, allotted without any payment and on the basis of holding of any other financial asset, the period shall be reckoned from the date of the allotment of such financial asset. Section 47(x) and 49(2A) were inserted by the Finance (No.2) Act, 1961 with retrospective effect from 1.4.1962. Section 47(x) provides that any transfer by way of conversion of bonds or debentures, debenture-stock or deposit certificates in any form, of a company into shares or debentures of that company shall not mean transfer within the meaning of Section 45 of the Act. Further, sub-section 2A of Section 49 provides that the cost of acquisition of the asset to the assessee shall be deemed to be that part of the cost of debenture, debenture-stock, bond or deposit certificate in relation to which such asset is acquired by the assessee. In other words, the original cost at the time of allotment would be taken to be cost of acquisition.8. A plain reading of Section 47(x) would indicate that the conversion of convertible debentures into shares would not constitute transfer for the purposes of computation of income under the head capital gains. Similarly, Section 49(2A) of the Act clarifies that for computing the capital gains on sale of shares received on conversion of convertible debentures, the cost of acquisition of shares shall be the cost of convertible debentures and thus it shall be deemed to be the cost of such shares received on conversion. In such a situation, as a necessary corollary, it would be but logical to reckon the date of acquisition of the convertible debentures as the date of acquisition of such shares received on conversion of convertible debentures. Now examining the factual matrix herein, the assessee was allotted 27160 convertible debentures of TELCO Limited on 20.12.2001 which were converted into equal number of shares on 31.3.2002. The assessee sold the said shares between 23.12.2002 to 10.3.2003 in different lot. This shall result in long term capital gains as the shares shall be deemed to have been held for a period exceeding 12 months by the assessee."85. We do not think that this view of the High Court of Punjab and Haryana at Chandigarh is in any way inaccurate. Similarly, Mr.Kaka laid emphasis on certain observations in the case of Commissioner of Income Tax vs. Manjula J. Shah (supra) and to our mind, though the principle laid down in this judgment may be of some assistance to the petitioners, still, merely because the judgment in the case of Commissioner of Income Tax vs. Naveen Bhatia, reported in 287 ITR 587 of the High Court of Punjab and Haryana at Chandigarh is not accepted by the Department and a Special Leave Petition is pending, its persuasive value is not lost. More so, when it is dealing with an identical issue.86. We are aware of the fact that Mr.Ahuja has also tendered a compilation and he has given certain list of dates, but, once we find that the reliance on these dates and events and particularly the date of conversion would not in any manner dilute the clauses of the FCCB Scheme of 1993, then, these dates and events as compiled by the Revenue are of no assistance.87. In the compilation tendered on behalf of the Revenue, several other materials are also introduced, including the Budget Speech of the Finance Minister. It also contains the new Industrial Policy, 1991 and relevant part of Taxmanns Foreign Exchange Management Manual. These may also make reference to the FCCB, but what we find is that an attempt is made to read the provisions of the Income Tax Act and introduced with effect from 1st April, 2008 in relation to Foreign Currency Exchangeable Bond Scheme, 2008 and apply it to the FCCB Scheme of 1993. That is not correct.88. Then, Mr.Ahuja invited our attention to the judgments of the Honble Supreme Court in Gainda Ram and Ors. vs. Municipal Corporation of Delhi and Ors, reported in (2010) 10 SCC 715. He relied upon this judgment to urge that a provision of law cannot be disregarded or brushed aside by making references to a scheme or understanding of it particularly of the executive. The principle that was pressed into service is that the schemes that are framed and referred in this judgment were later on not totally endorsed by the Honble Supreme Court. In any event, neither the policy nor the scheme can be called law and ignored in preference to the clear statutory provisions. Hence, the scheme framed under the direction of the court cannot be said to be framed under the power to frame Byelaws which flows from the statute. The scheme, therefore, does not have the status of law or even subordinate legislation.89. Mr.Ahuja also then invited our attention to the judgment of the Honble Supreme Court in the case of Ispat Industries Ltd. vs. Commissioner of Customs, Mumbai, reported in (2006) 12 SCC 583 to urge that rules framed under a statute stand on a different footing. Therefore, they can be considered as binding. We do not think that there is any quarrel about this principle, but its application will depend on the facts and circumstances of an individual case. Hence, we are not dealing with other judgments cited by him, including Smt.Taralata Shyam and Ors. vs. Commissioner of Income Tax , reported in (1977) 108 ITR 345. The other judgments on similar point also need not be referred in further details. | 1[ds]48. A bare perusal of this section would indicate that the Revisional Authority is invoked so as to seek a revision of other orders and while that jurisdiction is invoked, the authority can exercise the powers under section 264 and make an enquiry or cause an enquiry to be made to enable it to pass, subject to the provision of this Act, such order but not an order prejudicial to the assessee. The order that he thinks fit should be passed must, therefore, conform to the conditions set out in sub-sections (1), (2) and (3) of section 264.We are really not concerned with this conclusion because the Assessee is satisfied with it and obtained the relief it sought from the Commissioner.As already stated above, it is the second issue and in that regard the Revisional Authority reproduced paragraphs 16 and 18 of the assessment order and in paragraphs 9 and 10, the Commissioner says that the assessee has considered the cost of acquisition of the shares to be the closing price of the shares of NBVL on the National Stock Exchange on the date of allotment of the shares to the assessee i.e. on 18 th August, 2011, but the AO faulted it. The Revisional Authority then, in paragraph 11, reproduces section 49(2A) and says that this provision refers to the transfers mentioned in clause (xa) of section 47 of the Income-tax Act, which was inserted by the Finance Act2008 with effect from 1st April, 2008. Upon reproducing this provision in paragraph 11.4, the Revisional Authority comes to the conclusion that it is a combined reading of the three provisions which enable him to reject the contentions of the petitioner.Firstly, we will see only the main conclusion and what we find is that section 115AC(1) clearly refers to income by way of interest on bonds of an Indian company issued in accordance with such Scheme as the Central Government may, by notification in the Official Gazette, specify in this behalf. Section 49(2A), to which we have already made detailed reference above, deals with a capital asset being a share or debenture of a company becoming the property of the assessee in consideration of a transfer referred to in clause (x) or (xa) of section 47 and section 47(x) under a transfer by way of conversion of bonds or debentures and (xa) by way of conversion of bonds referred to in clause (a) of sub- section (1) of section 115AC into shares or debentures of any company. The assessee may maintain that there is nothing in the Act which enables the authorities to deal with a situation and it is only clause 7 dealing with transfer and redemption and particularly sub-clause (4) thereof, as spelt out in the Scheme, which will apply. We are of the clear opinion that it is the conversion of foreign currency convertible bonds that the cost of acquisition in the hands of non-resident Indian investors would be the conversion price determined on the basis of the price of the shares as in this case, the National Stock Exchange, on the date of conversion of foreign currency convertible bonds into shares. This is the cost of acquisition in the hands of a non-resident investor. That would be the conversion price determined on the basis of the price of the shares at the National Stock Exchange and, therefore, conversions of FCCBs would be donethese circumstances, it is evident that any scheme prior thereto and particularly the one involved before us, namely, the FCCB Scheme notified by Central Government in 1993 and applicable with effect from 1 st April, 1992 and enabling the computation of cost of acquisition, in terms thereof, was held to be unaffected. It was, therefore, possible to compute the cost in terms of the clauses of that scheme and which was admittedly an earlier scheme.To our mind, therefore, Mr.Kaka is right in his contention that the revisional authority fell in clear error in taking assistance of the amendments made by the Finance Act, 2008. To our mind, Mr. Kaka is right in urging that the cost of acquisition of the shares was to be determined with reference to the date of acquisition of the FCCBs, then, the period for which the shares should be regarded as having been held by the petitioner- assessee should also be reckoned to the date of acquisition. He is right in urging that the second respondent failed to consider the scheme and therefore, once these clauses are included in the FCCB Scheme itself, then, they would govern the FCCB related transactions to the extent the corresponding provisions are not made in the Act. The authority was not right in holding that the cost of acquisition of the shares as per clause 7(4) of the FCCB Scheme is not tenable. Thus, the Government of India notified Scheme effected from 1992 held the field and was the applicable one. The FCEB Scheme has equal status but is admittedly a later one.The reliance placed by Mr.Kaka on the compilation tendered by him is thus accurate.We do not think that this view of the High Court of Punjab and Haryana at Chandigarh is in any way inaccurate. Similarly,Mr.Kaka laid emphasis on certain observations in the case of Commissioner of Income Tax vs. Manjula J. Shah (supra)and to our mind, though the principle laid down in this judgment may be of some assistance to the petitioners, still, merely because the judgment in the case of Commissioner of Income Tax vs. Naveen Bhatia, reported in 287 ITR 587 of the High Court of Punjab and Haryana at Chandigarh is not accepted by the Department and a Special Leave Petition is pending, its persuasive value is not lost. More so, when it is dealing with an identical issue.We are aware of the fact that Mr.Ahuja has also tendered a compilation and he has given certain list of dates, but, once we find that the reliance on these dates and events and particularly the date of conversion would not in any manner dilute the clauses of the FCCB Scheme of 1993, then, these dates and events as compiled by the Revenue are of no assistance.In the compilation tendered on behalf of the Revenue, several other materials are also introduced, including the Budget Speech of the Finance Minister. It also contains the new Industrial Policy, 1991 and relevant part of Taxmanns Foreign Exchange Management Manual. These may also make reference to the FCCB, but what we find is that an attempt is made to read the provisions of the Income Tax Act and introduced with effect from 1st April, 2008 in relation to Foreign Currency Exchangeable Bond Scheme, 2008 and apply it to the FCCB Scheme of 1993. That is notprinciple that was pressed into service is that the schemes that are framed and referred in this judgment were later on not totally endorsed by the Honble Supreme Court. In any event, neither the policy nor the scheme can be called law and ignored in preference to the clear statutory provisions. Hence, the scheme framed under the direction of the court cannot be said to be framed under the power to frame Byelaws which flows from the statute. The scheme, therefore, does not have the status of law or even subordinatedo not think that there is any quarrel about this principle, but its application will depend on the facts and circumstances of an individual case. Hence, we are not dealing with other judgments cited by him, including Smt.Taralata Shyam and Ors. vs. Commissioner of Income Tax , reported in (1977) 108 ITR 345. The other judgments on similar point also need not be referred in further details. | 1 | 18,709 | 1,420 | ### 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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from debentures"84. In para 2 of the judgment, the facts have been noted as also the submissions and thereafter, the discussion has been made in paras 7 and 8, which read as under:-"7. Section 2(42A) of the Act defines a short term capital asset and in case of shares where the assessee holds the said shares for 12 months or less than 12 months, it shall be short term capital asset. Clause (f) of Explanation I(i) to Section 2(42A) of the Act states that in case of capital asset being a financial asset, allotted without any payment and on the basis of holding of any other financial asset, the period shall be reckoned from the date of the allotment of such financial asset. Section 47(x) and 49(2A) were inserted by the Finance (No.2) Act, 1961 with retrospective effect from 1.4.1962. Section 47(x) provides that any transfer by way of conversion of bonds or debentures, debenture-stock or deposit certificates in any form, of a company into shares or debentures of that company shall not mean transfer within the meaning of Section 45 of the Act. Further, sub-section 2A of Section 49 provides that the cost of acquisition of the asset to the assessee shall be deemed to be that part of the cost of debenture, debenture-stock, bond or deposit certificate in relation to which such asset is acquired by the assessee. In other words, the original cost at the time of allotment would be taken to be cost of acquisition.8. A plain reading of Section 47(x) would indicate that the conversion of convertible debentures into shares would not constitute transfer for the purposes of computation of income under the head capital gains. Similarly, Section 49(2A) of the Act clarifies that for computing the capital gains on sale of shares received on conversion of convertible debentures, the cost of acquisition of shares shall be the cost of convertible debentures and thus it shall be deemed to be the cost of such shares received on conversion. In such a situation, as a necessary corollary, it would be but logical to reckon the date of acquisition of the convertible debentures as the date of acquisition of such shares received on conversion of convertible debentures. Now examining the factual matrix herein, the assessee was allotted 27160 convertible debentures of TELCO Limited on 20.12.2001 which were converted into equal number of shares on 31.3.2002. The assessee sold the said shares between 23.12.2002 to 10.3.2003 in different lot. This shall result in long term capital gains as the shares shall be deemed to have been held for a period exceeding 12 months by the assessee."85. We do not think that this view of the High Court of Punjab and Haryana at Chandigarh is in any way inaccurate. Similarly, Mr.Kaka laid emphasis on certain observations in the case of Commissioner of Income Tax vs. Manjula J. Shah (supra) and to our mind, though the principle laid down in this judgment may be of some assistance to the petitioners, still, merely because the judgment in the case of Commissioner of Income Tax vs. Naveen Bhatia, reported in 287 ITR 587 of the High Court of Punjab and Haryana at Chandigarh is not accepted by the Department and a Special Leave Petition is pending, its persuasive value is not lost. More so, when it is dealing with an identical issue.86. We are aware of the fact that Mr.Ahuja has also tendered a compilation and he has given certain list of dates, but, once we find that the reliance on these dates and events and particularly the date of conversion would not in any manner dilute the clauses of the FCCB Scheme of 1993, then, these dates and events as compiled by the Revenue are of no assistance.87. In the compilation tendered on behalf of the Revenue, several other materials are also introduced, including the Budget Speech of the Finance Minister. It also contains the new Industrial Policy, 1991 and relevant part of Taxmanns Foreign Exchange Management Manual. These may also make reference to the FCCB, but what we find is that an attempt is made to read the provisions of the Income Tax Act and introduced with effect from 1st April, 2008 in relation to Foreign Currency Exchangeable Bond Scheme, 2008 and apply it to the FCCB Scheme of 1993. That is not correct.88. Then, Mr.Ahuja invited our attention to the judgments of the Honble Supreme Court in Gainda Ram and Ors. vs. Municipal Corporation of Delhi and Ors, reported in (2010) 10 SCC 715. He relied upon this judgment to urge that a provision of law cannot be disregarded or brushed aside by making references to a scheme or understanding of it particularly of the executive. The principle that was pressed into service is that the schemes that are framed and referred in this judgment were later on not totally endorsed by the Honble Supreme Court. In any event, neither the policy nor the scheme can be called law and ignored in preference to the clear statutory provisions. Hence, the scheme framed under the direction of the court cannot be said to be framed under the power to frame Byelaws which flows from the statute. The scheme, therefore, does not have the status of law or even subordinate legislation.89. Mr.Ahuja also then invited our attention to the judgment of the Honble Supreme Court in the case of Ispat Industries Ltd. vs. Commissioner of Customs, Mumbai, reported in (2006) 12 SCC 583 to urge that rules framed under a statute stand on a different footing. Therefore, they can be considered as binding. We do not think that there is any quarrel about this principle, but its application will depend on the facts and circumstances of an individual case. Hence, we are not dealing with other judgments cited by him, including Smt.Taralata Shyam and Ors. vs. Commissioner of Income Tax , reported in (1977) 108 ITR 345. The other judgments on similar point also need not be referred in further details.
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we will see only the main conclusion and what we find is that section 115AC(1) clearly refers to income by way of interest on bonds of an Indian company issued in accordance with such Scheme as the Central Government may, by notification in the Official Gazette, specify in this behalf. Section 49(2A), to which we have already made detailed reference above, deals with a capital asset being a share or debenture of a company becoming the property of the assessee in consideration of a transfer referred to in clause (x) or (xa) of section 47 and section 47(x) under a transfer by way of conversion of bonds or debentures and (xa) by way of conversion of bonds referred to in clause (a) of sub- section (1) of section 115AC into shares or debentures of any company. The assessee may maintain that there is nothing in the Act which enables the authorities to deal with a situation and it is only clause 7 dealing with transfer and redemption and particularly sub-clause (4) thereof, as spelt out in the Scheme, which will apply. We are of the clear opinion that it is the conversion of foreign currency convertible bonds that the cost of acquisition in the hands of non-resident Indian investors would be the conversion price determined on the basis of the price of the shares as in this case, the National Stock Exchange, on the date of conversion of foreign currency convertible bonds into shares. This is the cost of acquisition in the hands of a non-resident investor. That would be the conversion price determined on the basis of the price of the shares at the National Stock Exchange and, therefore, conversions of FCCBs would be donethese circumstances, it is evident that any scheme prior thereto and particularly the one involved before us, namely, the FCCB Scheme notified by Central Government in 1993 and applicable with effect from 1 st April, 1992 and enabling the computation of cost of acquisition, in terms thereof, was held to be unaffected. It was, therefore, possible to compute the cost in terms of the clauses of that scheme and which was admittedly an earlier scheme.To our mind, therefore, Mr.Kaka is right in his contention that the revisional authority fell in clear error in taking assistance of the amendments made by the Finance Act, 2008. To our mind, Mr. Kaka is right in urging that the cost of acquisition of the shares was to be determined with reference to the date of acquisition of the FCCBs, then, the period for which the shares should be regarded as having been held by the petitioner- assessee should also be reckoned to the date of acquisition. He is right in urging that the second respondent failed to consider the scheme and therefore, once these clauses are included in the FCCB Scheme itself, then, they would govern the FCCB related transactions to the extent the corresponding provisions are not made in the Act. The authority was not right in holding that the cost of acquisition of the shares as per clause 7(4) of the FCCB Scheme is not tenable. Thus, the Government of India notified Scheme effected from 1992 held the field and was the applicable one. The FCEB Scheme has equal status but is admittedly a later one.The reliance placed by Mr.Kaka on the compilation tendered by him is thus accurate.We do not think that this view of the High Court of Punjab and Haryana at Chandigarh is in any way inaccurate. Similarly,Mr.Kaka laid emphasis on certain observations in the case of Commissioner of Income Tax vs. Manjula J. Shah (supra)and to our mind, though the principle laid down in this judgment may be of some assistance to the petitioners, still, merely because the judgment in the case of Commissioner of Income Tax vs. Naveen Bhatia, reported in 287 ITR 587 of the High Court of Punjab and Haryana at Chandigarh is not accepted by the Department and a Special Leave Petition is pending, its persuasive value is not lost. More so, when it is dealing with an identical issue.We are aware of the fact that Mr.Ahuja has also tendered a compilation and he has given certain list of dates, but, once we find that the reliance on these dates and events and particularly the date of conversion would not in any manner dilute the clauses of the FCCB Scheme of 1993, then, these dates and events as compiled by the Revenue are of no assistance.In the compilation tendered on behalf of the Revenue, several other materials are also introduced, including the Budget Speech of the Finance Minister. It also contains the new Industrial Policy, 1991 and relevant part of Taxmanns Foreign Exchange Management Manual. These may also make reference to the FCCB, but what we find is that an attempt is made to read the provisions of the Income Tax Act and introduced with effect from 1st April, 2008 in relation to Foreign Currency Exchangeable Bond Scheme, 2008 and apply it to the FCCB Scheme of 1993. That is notprinciple that was pressed into service is that the schemes that are framed and referred in this judgment were later on not totally endorsed by the Honble Supreme Court. In any event, neither the policy nor the scheme can be called law and ignored in preference to the clear statutory provisions. Hence, the scheme framed under the direction of the court cannot be said to be framed under the power to frame Byelaws which flows from the statute. The scheme, therefore, does not have the status of law or even subordinatedo not think that there is any quarrel about this principle, but its application will depend on the facts and circumstances of an individual case. Hence, we are not dealing with other judgments cited by him, including Smt.Taralata Shyam and Ors. vs. Commissioner of Income Tax , reported in (1977) 108 ITR 345. The other judgments on similar point also need not be referred in further details.
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Marybong & Kyel Tea Industries Ltd Vs. Commissioner Of Income Tax Calcutta | In these appeals, the appellants (assessees) had received compensation fro m the Insurers under policies for insurance against fire and the question that was referred for opinion of the High Court was whether there was a transfer as defined in Section 2 (47) of the Income Tax Act, 1961 and the excess sum of compensation after deducting the original cost of the assets destroyed by fire had been properly brought to tax as capital gains under Section 45 of the Income Tax Act, 1961. By the impugned judgment in Civil Appeal No. 3909 of 1983 the Calcutta High Court ha s answered the said question against the assessee and has placed reliance on the decision of the Gujarat High Court in Commissioner of Income Tax v. Vania Silk Mills. The said decision in Civil Appeal No. 3909 of 1983 was followed by the said High Court in the Judgment which is under challenge in Civil Appeal No. 3910 of 1983. The decision of the Gujarat High Court in Commissioner of Income Tax v. Vania Silk Mills (supra) came up in appeal before this Court and has been reversed in Vania Silk Mills v. Commissioner of Income Tax, wherein it has been held that in cases where an Insurance Company pays for the total loss or damage of the property and takes over the property or whatever is left of it there is no transfer for the purpose of capital gain under Section 45 of the Income Tax Act. This matter if thus fully covered by the said decision of this Court reported in. | 1[ds]The said decision in Civil Appeal No. 3909 of 1983 was followed by the said High Court in the Judgment which is under challenge in Civil Appeal No. 3910 of 1983. The decision of the Gujarat High Court in Commissioner of Income Tax v. Vania Silk Mills (supra) came up in appeal before this Court and has been reversed in Vania Silk Mills v. Commissioner of Income Tax, wherein it has been held that in cases where an Insurance Company pays for the total loss or damage of the property and takes over the property or whatever is left of it there is no transfer for the purpose of capital gain under Section 45 of the Income Tax Act. This matter if thus fully covered by the said decision of this Court reported in. | 1 | 281 | 146 | ### 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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In these appeals, the appellants (assessees) had received compensation fro m the Insurers under policies for insurance against fire and the question that was referred for opinion of the High Court was whether there was a transfer as defined in Section 2 (47) of the Income Tax Act, 1961 and the excess sum of compensation after deducting the original cost of the assets destroyed by fire had been properly brought to tax as capital gains under Section 45 of the Income Tax Act, 1961. By the impugned judgment in Civil Appeal No. 3909 of 1983 the Calcutta High Court ha s answered the said question against the assessee and has placed reliance on the decision of the Gujarat High Court in Commissioner of Income Tax v. Vania Silk Mills. The said decision in Civil Appeal No. 3909 of 1983 was followed by the said High Court in the Judgment which is under challenge in Civil Appeal No. 3910 of 1983. The decision of the Gujarat High Court in Commissioner of Income Tax v. Vania Silk Mills (supra) came up in appeal before this Court and has been reversed in Vania Silk Mills v. Commissioner of Income Tax, wherein it has been held that in cases where an Insurance Company pays for the total loss or damage of the property and takes over the property or whatever is left of it there is no transfer for the purpose of capital gain under Section 45 of the Income Tax Act. This matter if thus fully covered by the said decision of this Court reported in.
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### Explanation:
The said decision in Civil Appeal No. 3909 of 1983 was followed by the said High Court in the Judgment which is under challenge in Civil Appeal No. 3910 of 1983. The decision of the Gujarat High Court in Commissioner of Income Tax v. Vania Silk Mills (supra) came up in appeal before this Court and has been reversed in Vania Silk Mills v. Commissioner of Income Tax, wherein it has been held that in cases where an Insurance Company pays for the total loss or damage of the property and takes over the property or whatever is left of it there is no transfer for the purpose of capital gain under Section 45 of the Income Tax Act. This matter if thus fully covered by the said decision of this Court reported in.
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Commissioner of Wealth Tax, West Bengal Vs. Aluminium Corporation of India Limited | be their written down value as per the income-tax records and not the value shown by the assessee in its balance-sheets3. The department appealed to the Tribunal against the order of the Appellate Assistant Commissioner. The Tribunal allowed the appeal partially. It upheld the action of the Wealth-tax Officer in determining the value of the fixed assets on the basis of the values shown in the balance-sheets of the company, but it, however, held that the assessee was entitled to an allowance in respect of these assets on account of wear and tear during the period subsequent to the revaluation. Thereafter, at the instance of the assessee as well as the Commissioner, the Tribunal stated a case and submitted the following questions seeking the opinion of the High Court"(1) Whether, on the facts and in the circumstances of the case, in determining the net value of the assets of the assessee-company under section 7(2) of the Wealth-tax Act, the value of the companys fixed assets as shown in its balance-sheet as on the valuation dates should have been substituted by the written down value of those assets as per the companys income tax records ? (2) If the answer to the first question is in the negative, whether on the facts and in the circumstances of the case, for the purposes of determining the net value of the assets of the company under section 7(2) of the Wealth-tax Act an adjustment on account of normal depreciation of the fixed assets from the date of revaluation of the assets to the valuation dates was justified ?" 4. Now reverting back to the assessment of the assessee for the assessment year 1957-58, we have earlier noted the decision of the High Court. Aggrieved by the answer given by the High Court on the second question the Commissioner has brought Civil Appeal No. 1075 of 1971. The assessee has not appealed against the decision of the High Court on the first questionBefore adverting to the merits of the contentions of the parties, we consider it necessary to observe that we are wholly unable to comprehend the attitude of the High Court while dealing with the case. The High Court quite clearly exceeded its jurisdiction in examining the competence of this court to remand an appeal brought to this court under the provisions of the Wealth-tax Act. It would have done well to remind itself that it was bound by the orders of this court and could not entertain or express any argument or views challenging their correctness. The judicial tradition and propriety required that court not to attempt to sit on judgment over the decisions and orders of this court 5. Now turning to the second question referred to the High Court, we agree with the High Court that the valuation of the assets shown in the balance-sheet is not conclusive. Wealth-tax is levied on the value of the assets of the assessee on the valuation date. Section 7(2) of the Wealth-tax Act merely requires the Wealth-tax Officer to have regard to the balance-sheet. It is open to the assessee to satisfy the authorities under the Wealth-tax Act that the valuation shown in the balance-sheet is not correct. But in the absence of such a proof, the Wealth-tax Officer will be justified in proceeding on the basis that the value shown in the balance-sheet is correct because no one can know the value of the assets of a business more than those who are in charge of the business. In other words, the value of the assets shown in the balance-sheet can justifiably be made the primary basis of valuation for the purpose of the Wealth-tax Act. In other words, it can be taken as prima facie evidence of the value of the assets. Here again the High Court ignoring the ratio of the decision of this court in Kesoram Industries case, as well as the other decisions of this court held that the evidence afforded by the balance-sheet cannot be considered as primary evidence or prima facie evidence of the value, of the assets of business. To say the least, the learned Chief Justice indulged in an unnecessary mental exercise forgetting the fact that the law as interperted by this court is binding on all courts and TribunalsTurning to the facts of the assessees case, the revaluation of the assets was made in 1956. That revaluation in the absence of any evidence to show that it was incorrect, undoubtedly afforded a sound basis for valuing the assessees assets. But then, when the value of those assets had to be determined on the valuation dates concerned in these cases, the Wealth-tax Officer should have deducted from the 1956 valuation the value of the depreciation of those assets after the date they were revalued. Undoubtedly, those assets were subject to wear and tear and there was no evidence to show that the market value of those assets had gone up after they were valued in 1956. Our conclusion regarding the valuation for the year 1957-58 applies with equal force as regards the valuation for 1958-59 and 1959-60. Following the decision of this court in Aluminium Corporation of India Ltd.s case, we answer the first question referred to the High Court in all these appeals in favour of the department. On this question we see no justification for the reservations made by the High Court in the judgment under appeal in Civil Appeal No. 1075 of 1971 6. Now, turning to the second question, we are of the opinion that the finding of the Tribunal on that question was essentially a finding of fact. That finding was based on relevant evidence. It is not vitiated in any manner. In our opinion, the Tribunal took a correct view of the scope of section 7(2) of the Wealth-tax Act and its approach to the question was in accordance with law. Hence, our answer to the second question is in the affirmative and in favour of the assessee. | 1[ds]Now turning to the second question referred to the High Court, we agree with the High Court that the valuation of the assets shown in the balance-sheet is not conclusive. Wealth-tax is levied on the value of the assets of the assessee on the valuation date. Section 7(2) of the Wealth-tax Act merely requires the Wealth-tax Officer to have regard to the balance-sheet. It is open to the assessee to satisfy the authorities under the Wealth-tax Act that the valuation shown in the balance-sheet is not correct. But in the absence of such a proof, the Wealth-tax Officer will be justified in proceeding on the basis that the value shown in the balance-sheet is correct because no one can know the value of the assets of a business more than those who are in charge of the business. In other words, the value of the assets shown in the balance-sheet can justifiably be made the primary basis of valuation for the purpose of the Wealth-tax Act. In other words, it can be taken as prima facie evidence of the value of the assets. Here again the High Court ignoring the ratio of the decision of this court in Kesoram Industries case, as well as the other decisions of this court held that the evidence afforded by the balance-sheet cannot be considered as primary evidence or prima facie evidence of the value, of the assets of business. To say the least, the learned Chief Justice indulged in an unnecessary mental exercise forgetting the fact that the law as interperted by this court is binding on all courts and TribunalsTurning to the facts of the assessees case, the revaluation of the assets was made in 1956. That revaluation in the absence of any evidence to show that it was incorrect, undoubtedly afforded a sound basis for valuing the assessees assets. But then, when the value of those assets had to be determined on the valuation dates concerned in these cases, the Wealth-tax Officer should have deducted from the 1956 valuation the value of the depreciation of those assets after the date they were revalued. Undoubtedly, those assets were subject to wear and tear and there was no evidence to show that the market value of those assets had gone up after they were valued in 1956. Our conclusion regarding the valuation for the year 1957-58 applies with equal force as regards the valuation for 1958-59 and 1959-60. Following the decision of this court in Aluminium Corporation of India Ltd.s case, we answer the first question referred to the High Court in all these appeals in favour of the department. On this question we see no justification for the reservations made by the High Court in the judgment under appeal in Civil Appeal No. 1075 of 1971Now, turning to the second question, we are of the opinion that the finding of the Tribunal on that question was essentially a finding of fact. That finding was based on relevant evidence. It is not vitiated in any manner. In our opinion, the Tribunal took a correct view of the scope of section 7(2) of the Wealth-tax Act and its approach to the question was in accordance with law. Hence, our answer to the second question is in the affirmative and in favour of the assesseeThe assessee has not appealed against the decision of the High Court on the first questionBefore adverting to the merits of the contentions of the parties, we consider it necessary to observe that we are wholly unable to comprehend the attitude of the High Court while dealing with the caseThe High Court quite clearly exceeded its jurisdiction in examining the competence of this court to remand an appeal brought to this court under the provisions of thex Act. It would have done well to remind itself that it was bound by the orders of this court and could not entertain or express any argument or views challenging their correctness. The judicial tradition and propriety required that court not to attempt to sit on judgment over the decisions and orders of this court | 1 | 2,200 | 731 | ### 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:
be their written down value as per the income-tax records and not the value shown by the assessee in its balance-sheets3. The department appealed to the Tribunal against the order of the Appellate Assistant Commissioner. The Tribunal allowed the appeal partially. It upheld the action of the Wealth-tax Officer in determining the value of the fixed assets on the basis of the values shown in the balance-sheets of the company, but it, however, held that the assessee was entitled to an allowance in respect of these assets on account of wear and tear during the period subsequent to the revaluation. Thereafter, at the instance of the assessee as well as the Commissioner, the Tribunal stated a case and submitted the following questions seeking the opinion of the High Court"(1) Whether, on the facts and in the circumstances of the case, in determining the net value of the assets of the assessee-company under section 7(2) of the Wealth-tax Act, the value of the companys fixed assets as shown in its balance-sheet as on the valuation dates should have been substituted by the written down value of those assets as per the companys income tax records ? (2) If the answer to the first question is in the negative, whether on the facts and in the circumstances of the case, for the purposes of determining the net value of the assets of the company under section 7(2) of the Wealth-tax Act an adjustment on account of normal depreciation of the fixed assets from the date of revaluation of the assets to the valuation dates was justified ?" 4. Now reverting back to the assessment of the assessee for the assessment year 1957-58, we have earlier noted the decision of the High Court. Aggrieved by the answer given by the High Court on the second question the Commissioner has brought Civil Appeal No. 1075 of 1971. The assessee has not appealed against the decision of the High Court on the first questionBefore adverting to the merits of the contentions of the parties, we consider it necessary to observe that we are wholly unable to comprehend the attitude of the High Court while dealing with the case. The High Court quite clearly exceeded its jurisdiction in examining the competence of this court to remand an appeal brought to this court under the provisions of the Wealth-tax Act. It would have done well to remind itself that it was bound by the orders of this court and could not entertain or express any argument or views challenging their correctness. The judicial tradition and propriety required that court not to attempt to sit on judgment over the decisions and orders of this court 5. Now turning to the second question referred to the High Court, we agree with the High Court that the valuation of the assets shown in the balance-sheet is not conclusive. Wealth-tax is levied on the value of the assets of the assessee on the valuation date. Section 7(2) of the Wealth-tax Act merely requires the Wealth-tax Officer to have regard to the balance-sheet. It is open to the assessee to satisfy the authorities under the Wealth-tax Act that the valuation shown in the balance-sheet is not correct. But in the absence of such a proof, the Wealth-tax Officer will be justified in proceeding on the basis that the value shown in the balance-sheet is correct because no one can know the value of the assets of a business more than those who are in charge of the business. In other words, the value of the assets shown in the balance-sheet can justifiably be made the primary basis of valuation for the purpose of the Wealth-tax Act. In other words, it can be taken as prima facie evidence of the value of the assets. Here again the High Court ignoring the ratio of the decision of this court in Kesoram Industries case, as well as the other decisions of this court held that the evidence afforded by the balance-sheet cannot be considered as primary evidence or prima facie evidence of the value, of the assets of business. To say the least, the learned Chief Justice indulged in an unnecessary mental exercise forgetting the fact that the law as interperted by this court is binding on all courts and TribunalsTurning to the facts of the assessees case, the revaluation of the assets was made in 1956. That revaluation in the absence of any evidence to show that it was incorrect, undoubtedly afforded a sound basis for valuing the assessees assets. But then, when the value of those assets had to be determined on the valuation dates concerned in these cases, the Wealth-tax Officer should have deducted from the 1956 valuation the value of the depreciation of those assets after the date they were revalued. Undoubtedly, those assets were subject to wear and tear and there was no evidence to show that the market value of those assets had gone up after they were valued in 1956. Our conclusion regarding the valuation for the year 1957-58 applies with equal force as regards the valuation for 1958-59 and 1959-60. Following the decision of this court in Aluminium Corporation of India Ltd.s case, we answer the first question referred to the High Court in all these appeals in favour of the department. On this question we see no justification for the reservations made by the High Court in the judgment under appeal in Civil Appeal No. 1075 of 1971 6. Now, turning to the second question, we are of the opinion that the finding of the Tribunal on that question was essentially a finding of fact. That finding was based on relevant evidence. It is not vitiated in any manner. In our opinion, the Tribunal took a correct view of the scope of section 7(2) of the Wealth-tax Act and its approach to the question was in accordance with law. Hence, our answer to the second question is in the affirmative and in favour of the assessee.
### Response:
1
### Explanation:
Now turning to the second question referred to the High Court, we agree with the High Court that the valuation of the assets shown in the balance-sheet is not conclusive. Wealth-tax is levied on the value of the assets of the assessee on the valuation date. Section 7(2) of the Wealth-tax Act merely requires the Wealth-tax Officer to have regard to the balance-sheet. It is open to the assessee to satisfy the authorities under the Wealth-tax Act that the valuation shown in the balance-sheet is not correct. But in the absence of such a proof, the Wealth-tax Officer will be justified in proceeding on the basis that the value shown in the balance-sheet is correct because no one can know the value of the assets of a business more than those who are in charge of the business. In other words, the value of the assets shown in the balance-sheet can justifiably be made the primary basis of valuation for the purpose of the Wealth-tax Act. In other words, it can be taken as prima facie evidence of the value of the assets. Here again the High Court ignoring the ratio of the decision of this court in Kesoram Industries case, as well as the other decisions of this court held that the evidence afforded by the balance-sheet cannot be considered as primary evidence or prima facie evidence of the value, of the assets of business. To say the least, the learned Chief Justice indulged in an unnecessary mental exercise forgetting the fact that the law as interperted by this court is binding on all courts and TribunalsTurning to the facts of the assessees case, the revaluation of the assets was made in 1956. That revaluation in the absence of any evidence to show that it was incorrect, undoubtedly afforded a sound basis for valuing the assessees assets. But then, when the value of those assets had to be determined on the valuation dates concerned in these cases, the Wealth-tax Officer should have deducted from the 1956 valuation the value of the depreciation of those assets after the date they were revalued. Undoubtedly, those assets were subject to wear and tear and there was no evidence to show that the market value of those assets had gone up after they were valued in 1956. Our conclusion regarding the valuation for the year 1957-58 applies with equal force as regards the valuation for 1958-59 and 1959-60. Following the decision of this court in Aluminium Corporation of India Ltd.s case, we answer the first question referred to the High Court in all these appeals in favour of the department. On this question we see no justification for the reservations made by the High Court in the judgment under appeal in Civil Appeal No. 1075 of 1971Now, turning to the second question, we are of the opinion that the finding of the Tribunal on that question was essentially a finding of fact. That finding was based on relevant evidence. It is not vitiated in any manner. In our opinion, the Tribunal took a correct view of the scope of section 7(2) of the Wealth-tax Act and its approach to the question was in accordance with law. Hence, our answer to the second question is in the affirmative and in favour of the assesseeThe assessee has not appealed against the decision of the High Court on the first questionBefore adverting to the merits of the contentions of the parties, we consider it necessary to observe that we are wholly unable to comprehend the attitude of the High Court while dealing with the caseThe High Court quite clearly exceeded its jurisdiction in examining the competence of this court to remand an appeal brought to this court under the provisions of thex Act. It would have done well to remind itself that it was bound by the orders of this court and could not entertain or express any argument or views challenging their correctness. The judicial tradition and propriety required that court not to attempt to sit on judgment over the decisions and orders of this court
|
Indian Petrochemicals Corporation Ltd Vs. Shramik Sena | the very inception. Hence, it cannot be gainsaid that for the purposes of the Factories Act the employees in the statutory canteens are the employees of the railways. The decisions of the Calcutta and Madras High Courts (supra) on the point, therefore, are both proper and valid. (emphasis supplied). 21. Thereafter, of course, in the said case, this Court on facts came to the conclusion, the employees concerned therein were in fact employees of the establishment. 22. If the argument of the workmen in regard to the interpretation of Rahas case is to be accepted then the same would run counter to the law laid down by a larger Bench of this Court in Khans case (supra). On this point similar is the view of another three-Judge Bench of this Court in the case of Employers in relation to the Management of Reserve Bank of India v. Workmen, 1996(3) SCC 267 : 1996(2) SCT 678 (SC). Therefore, following the judgment of this Court in the cases of Khan and R.B.I. (supra), we hold that the workmen of a statutory canteen would be the workmen of the establishment for the purpose of the Factories Act only and not for all other purposes. 23. Having held that the workmen in these appeals are the respondents workmen for the purposes of the Factories Act, we will now deal with the next question arising in this appeal as to whether from the material on record it could be held that the workmen are, in fact, the employees of the management for all purposes. 24. Before answering this question, we would like to observe that, normally, this being a question of fact, this Court would have been reluctant to examine this question which in the ordinary course should be first decided by a fact-finding tribunal. However, as stated above, in this case parties have filed detailed affidavits and documents which, in our opinion, are sufficient for us to decide this question without the need for any oral evidence. 25. Though the canteen in the appellants establishment is being managed by engaging a contractor, it is also an admitted fact that the canteen has been in existence from inception of the establishment. It is also an admitted fact that all the employees who were initially employed and those inducted from time to time in the canteen have continued to work in the said canteen uninterruptedly. The employer contends that this continuity of employment of the employees, inspite of there being change of contractors, was due to an order, made by the Industrial Court, Thane, on 10th of November, 1994 wherein the Industrial Court held that these workmen are entitled to continuity of service in the same canteen irrespective of the change in the contractor. Consequently, a direction was issued to the management herein to incorporate appropriate clauses in the contract that may be entered into with any outside contractor to ensure the continuity of employment of these workmen. The management, therefore, contends that the continuous employment of these workmen is not voluntary. A perusal of the said order of the Industrial Court shows that these workmen had contended before the said court that the management was indulging in an unfair labour practice and in fact they were employed by the Company. They specifically contended therein that they are entitled to continue in the employment of the Company irrespective of the change in the contractor. The Industrial Court accepted their contention as against the plea put forth by the management herein. The employer did not think it appropriate to challenge this decision of the Industrial Court which has become final. This clearly suggests that the management accepted as a matter of fact the respondent-workmen are permanent employees of the managements canteen. This is a very significant fact to show the true nature of respondents employment. That apart, a perusal of the affidavit filed in this Court and the contract entered into between the management and the contractor clearly establishes :- (a) The canteen has been there since the inception of the appellants factory. (b) The workmen have been employed for long years and despite change of contractors the workers have continued to be employed in the canteen. (c) The premises, furniture, fixture, fuel, electricity, utensils etc. have been provided for by the appellant. (d) The wages of the canteen workers have to be reimbursed by the appellant. (e) The supervision and control on the canteen is exercised by the appellant through its authorised officer, as can be seen from the various clauses of the contract between the appellant and the contractor. (f) The contractor is nothing but an agent or a manager of the appellant, who works completely under the supervision, control and directions of the appellant. (g) The workmen have the protection of continuous employment in the establishment. 26. Considering these factors cumulatively, in addition to the fact that the canteen in the establishment of the management is a statutory canteen, we are of the opinion that in the instant case, the respondent-workmen are in fact the workmen of the appellant-management. 27. At this stage, it is necessary to note another argument of Mr. Andhyarujina that in view of the fact that there is no abolition of contract labour in the canteen of the appellants establishment, it is open to the management to manage its canteen through a contractor. Hence, he contends that by virtue of the contract entered into by the management with the contractor, the respondent-workmen cannot be treated as the employees of the management. This argument would have had some substance if in reality the management had engaged a contractor who was wholly independent of the management, but we have come to the conclusion on facts that the contractor in the present case is engaged only for the purpose of record and for all purposes the workmen in this case are in fact the workmen of the management. In the background of this finding, the last argument of Mr. Andhyarujina should also fail. | 0[ds]16. It is clear from this definition that a person employed either directly or by or through any contractor in a place where manufacturing process is carried on, is a `workman for the purpose of this Act. Section 46 of the Act empowers the State Government to make rules requiring any specified factory wherein more than 250 workers are ordinarily employed to provide and maintain a canteen by the occupier for the use of the workers. It is not in dispute, pursuant to this requirement of law, the management is providing canteen facilities wherein the respondent employees are working. Hence, it is fairly conceded by the learned counsel for the management that the respondent workmen by virtue of the definition of the `workman under the Act, are the employees of the appellant management for purposes of the ActIt is to be noted that in Rahas case this Court did not specifically hold that the deemed employment of the workers is for all purposes nor did it specifically hold that it is only for the purpose of the Factories Act. However, a reading of the judgment in its entirety makes it clear that the deemed employment is only for the purpose of the Factories Act. This Court in Rahas case relied upon an earlier judgment of this Court in M.M.R. Khan and others v. Union of India and others, 1990 Suppl. SCC 191. Ae Bench of this Court considering the provisions of the Factories Act held that by virtue of Section 46 of the said Act the factories covered by the said Act are obliged to provide canteen services and termed such canteens as statutory canteens. In para 6 of the said judgment while referring to an earlier judgment of this Court in C.A. No. 368/78, this Court held thus :The Act referred to in the aforesaid order obviously means the Factories Act. Therefore, what was confirmed by this Court was the declaration given by the Calcutta High Court that the employees of the statutory canteens were railway employees for the purposes of the Factories Act20. Thereafter, in the said judgment (Khans case), this Court at para 20 proceeded to consider the question as to whether staff employed in the statutory canteen in the railway establishment, industrial or, are railway employees or notAnd concluded thus at para 28 :Thus the relationship of employer and employee stands created between the railway administration and the canteen employees from the very inception. Hence, it cannot be gainsaid that for the purposes of the Factories Act the employees in the statutory canteens are the employees of the railways. The decisions of the Calcutta and Madras High Courts (supra) on the point, therefore, are both proper and valid. (emphasis supplied)21. Thereafter, of course, in the said case, this Court on facts came to the conclusion, the employees concerned therein were in fact employees of the establishment22. If the argument of the workmen in regard to the interpretation of Rahas case is to be accepted then the same would run counter to the law laid down by a larger Bench of this Court in Khans case (supra). On this point similar is the view of anothere Bench of this Court in the case of Employers in relation to the Management of Reserve Bank of India v. Workmen, 1996(3) SCC 267 : 1996(2) SCT 678 (SC). Therefore, following the judgment of this Court in the cases of Khan and R.B.I. (supra), we hold that the workmen of a statutory canteen would be the workmen of the establishment for the purpose of the Factories Act only and not for all other purposes23. Having held that the workmen in these appeals are the respondents workmen for the purposes of the Factories Act, we will now deal with the next question arising in this appeal as to whether from the material on record it could be held that the workmen are, in fact, the employees of the management for all purposes24. Before answering this question, we would like to observe that, normally, this being a question of fact, this Court would have been reluctant to examine this question which in the ordinary course should be first decided by ag tribunal. However, as stated above, in this case parties have filed detailed affidavits and documents which, in our opinion, are sufficient for us to decide this question without the need for any oral evidence25. Though the canteen in the appellants establishment is being managed by engaging a contractor, it is also an admitted fact that the canteen has been in existence from inception of the establishment. It is also an admitted fact that all the employees who were initially employed and those inducted from time to time in the canteen have continued to work in the said canteen uninterruptedly. The employer contends that this continuity of employment of the employees, inspite of there being change of contractors, was due to an order, made by the Industrial Court, Thane, on 10th of November, 1994 wherein the Industrial Court held that these workmen are entitled to continuity of service in the same canteen irrespective of the change in the contractor. Consequently, a direction was issued to the management herein to incorporate appropriate clauses in the contract that may be entered into with any outside contractor to ensure the continuity of employment of these workmen. The management, therefore, contends that the continuous employment of these workmen is not voluntary. A perusal of the said order of the Industrial Court shows that these workmen had contended before the said court that the management was indulging in an unfair labour practice and in fact they were employed by the Company. They specifically contended therein that they are entitled to continue in the employment of the Company irrespective of the change in the contractor. The Industrial Court accepted their contention as against the plea put forth by the management herein. The employer did not think it appropriate to challenge this decision of the Industrial Court which has become final. This clearly suggests that the management accepted as a matter of fact then are permanent employees of the managements canteen. This is a very significant fact to show the true nature of respondents employment. That apart, a perusal of the affidavit filed in this Court and the contract entered into between the management and the contractor clearly establishes :(a) The canteen has been there since the inception of the appellants factory(b) The workmen have been employed for long years and despite change of contractors the workers have continued to be employed in the canteen(c) The premises, furniture, fixture, fuel, electricity, utensils etc. have been provided for by the appellant(d) The wages of the canteen workers have to be reimbursed by the appellant(e) The supervision and control on the canteen is exercised by the appellant through its authorised officer, as can be seen from the various clauses of the contract between the appellant and the contractor(f) The contractor is nothing but an agent or a manager of the appellant, who works completely under the supervision, control and directions of the appellant(g) The workmen have the protection of continuous employment in the establishment26. Considering these factors cumulatively, in addition to the fact that the canteen in the establishment of the management is a statutory canteen, we are of the opinion that in the instant case, the27. At this stage, it is necessary to note another argument of Mr. Andhyarujina that in view of the fact that there is no abolition of contract labour in the canteen of the appellants establishment, it is open to the management to manage its canteen through a contractor. Hence, he contends that by virtue of the contract entered into by the management with the contractor, then cannot be treated as the employees of the management. This argument would have had some substance if in reality the management had engaged a contractor who was wholly independent of the management, but we have come to the conclusion on facts that the contractor in the present case is engaged only for the purpose of record and for all purposes the workmen in this case are in fact the workmen of the management. In the background of this finding, the last argument of Mr. Andhyarujina should also fail. | 0 | 4,262 | 1,534 | ### 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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the very inception. Hence, it cannot be gainsaid that for the purposes of the Factories Act the employees in the statutory canteens are the employees of the railways. The decisions of the Calcutta and Madras High Courts (supra) on the point, therefore, are both proper and valid. (emphasis supplied). 21. Thereafter, of course, in the said case, this Court on facts came to the conclusion, the employees concerned therein were in fact employees of the establishment. 22. If the argument of the workmen in regard to the interpretation of Rahas case is to be accepted then the same would run counter to the law laid down by a larger Bench of this Court in Khans case (supra). On this point similar is the view of another three-Judge Bench of this Court in the case of Employers in relation to the Management of Reserve Bank of India v. Workmen, 1996(3) SCC 267 : 1996(2) SCT 678 (SC). Therefore, following the judgment of this Court in the cases of Khan and R.B.I. (supra), we hold that the workmen of a statutory canteen would be the workmen of the establishment for the purpose of the Factories Act only and not for all other purposes. 23. Having held that the workmen in these appeals are the respondents workmen for the purposes of the Factories Act, we will now deal with the next question arising in this appeal as to whether from the material on record it could be held that the workmen are, in fact, the employees of the management for all purposes. 24. Before answering this question, we would like to observe that, normally, this being a question of fact, this Court would have been reluctant to examine this question which in the ordinary course should be first decided by a fact-finding tribunal. However, as stated above, in this case parties have filed detailed affidavits and documents which, in our opinion, are sufficient for us to decide this question without the need for any oral evidence. 25. Though the canteen in the appellants establishment is being managed by engaging a contractor, it is also an admitted fact that the canteen has been in existence from inception of the establishment. It is also an admitted fact that all the employees who were initially employed and those inducted from time to time in the canteen have continued to work in the said canteen uninterruptedly. The employer contends that this continuity of employment of the employees, inspite of there being change of contractors, was due to an order, made by the Industrial Court, Thane, on 10th of November, 1994 wherein the Industrial Court held that these workmen are entitled to continuity of service in the same canteen irrespective of the change in the contractor. Consequently, a direction was issued to the management herein to incorporate appropriate clauses in the contract that may be entered into with any outside contractor to ensure the continuity of employment of these workmen. The management, therefore, contends that the continuous employment of these workmen is not voluntary. A perusal of the said order of the Industrial Court shows that these workmen had contended before the said court that the management was indulging in an unfair labour practice and in fact they were employed by the Company. They specifically contended therein that they are entitled to continue in the employment of the Company irrespective of the change in the contractor. The Industrial Court accepted their contention as against the plea put forth by the management herein. The employer did not think it appropriate to challenge this decision of the Industrial Court which has become final. This clearly suggests that the management accepted as a matter of fact the respondent-workmen are permanent employees of the managements canteen. This is a very significant fact to show the true nature of respondents employment. That apart, a perusal of the affidavit filed in this Court and the contract entered into between the management and the contractor clearly establishes :- (a) The canteen has been there since the inception of the appellants factory. (b) The workmen have been employed for long years and despite change of contractors the workers have continued to be employed in the canteen. (c) The premises, furniture, fixture, fuel, electricity, utensils etc. have been provided for by the appellant. (d) The wages of the canteen workers have to be reimbursed by the appellant. (e) The supervision and control on the canteen is exercised by the appellant through its authorised officer, as can be seen from the various clauses of the contract between the appellant and the contractor. (f) The contractor is nothing but an agent or a manager of the appellant, who works completely under the supervision, control and directions of the appellant. (g) The workmen have the protection of continuous employment in the establishment. 26. Considering these factors cumulatively, in addition to the fact that the canteen in the establishment of the management is a statutory canteen, we are of the opinion that in the instant case, the respondent-workmen are in fact the workmen of the appellant-management. 27. At this stage, it is necessary to note another argument of Mr. Andhyarujina that in view of the fact that there is no abolition of contract labour in the canteen of the appellants establishment, it is open to the management to manage its canteen through a contractor. Hence, he contends that by virtue of the contract entered into by the management with the contractor, the respondent-workmen cannot be treated as the employees of the management. This argument would have had some substance if in reality the management had engaged a contractor who was wholly independent of the management, but we have come to the conclusion on facts that the contractor in the present case is engaged only for the purpose of record and for all purposes the workmen in this case are in fact the workmen of the management. In the background of this finding, the last argument of Mr. Andhyarujina should also fail.
### Response:
0
### Explanation:
railway employees or notAnd concluded thus at para 28 :Thus the relationship of employer and employee stands created between the railway administration and the canteen employees from the very inception. Hence, it cannot be gainsaid that for the purposes of the Factories Act the employees in the statutory canteens are the employees of the railways. The decisions of the Calcutta and Madras High Courts (supra) on the point, therefore, are both proper and valid. (emphasis supplied)21. Thereafter, of course, in the said case, this Court on facts came to the conclusion, the employees concerned therein were in fact employees of the establishment22. If the argument of the workmen in regard to the interpretation of Rahas case is to be accepted then the same would run counter to the law laid down by a larger Bench of this Court in Khans case (supra). On this point similar is the view of anothere Bench of this Court in the case of Employers in relation to the Management of Reserve Bank of India v. Workmen, 1996(3) SCC 267 : 1996(2) SCT 678 (SC). Therefore, following the judgment of this Court in the cases of Khan and R.B.I. (supra), we hold that the workmen of a statutory canteen would be the workmen of the establishment for the purpose of the Factories Act only and not for all other purposes23. Having held that the workmen in these appeals are the respondents workmen for the purposes of the Factories Act, we will now deal with the next question arising in this appeal as to whether from the material on record it could be held that the workmen are, in fact, the employees of the management for all purposes24. Before answering this question, we would like to observe that, normally, this being a question of fact, this Court would have been reluctant to examine this question which in the ordinary course should be first decided by ag tribunal. However, as stated above, in this case parties have filed detailed affidavits and documents which, in our opinion, are sufficient for us to decide this question without the need for any oral evidence25. Though the canteen in the appellants establishment is being managed by engaging a contractor, it is also an admitted fact that the canteen has been in existence from inception of the establishment. It is also an admitted fact that all the employees who were initially employed and those inducted from time to time in the canteen have continued to work in the said canteen uninterruptedly. The employer contends that this continuity of employment of the employees, inspite of there being change of contractors, was due to an order, made by the Industrial Court, Thane, on 10th of November, 1994 wherein the Industrial Court held that these workmen are entitled to continuity of service in the same canteen irrespective of the change in the contractor. Consequently, a direction was issued to the management herein to incorporate appropriate clauses in the contract that may be entered into with any outside contractor to ensure the continuity of employment of these workmen. The management, therefore, contends that the continuous employment of these workmen is not voluntary. A perusal of the said order of the Industrial Court shows that these workmen had contended before the said court that the management was indulging in an unfair labour practice and in fact they were employed by the Company. They specifically contended therein that they are entitled to continue in the employment of the Company irrespective of the change in the contractor. The Industrial Court accepted their contention as against the plea put forth by the management herein. The employer did not think it appropriate to challenge this decision of the Industrial Court which has become final. This clearly suggests that the management accepted as a matter of fact then are permanent employees of the managements canteen. This is a very significant fact to show the true nature of respondents employment. That apart, a perusal of the affidavit filed in this Court and the contract entered into between the management and the contractor clearly establishes :(a) The canteen has been there since the inception of the appellants factory(b) The workmen have been employed for long years and despite change of contractors the workers have continued to be employed in the canteen(c) The premises, furniture, fixture, fuel, electricity, utensils etc. have been provided for by the appellant(d) The wages of the canteen workers have to be reimbursed by the appellant(e) The supervision and control on the canteen is exercised by the appellant through its authorised officer, as can be seen from the various clauses of the contract between the appellant and the contractor(f) The contractor is nothing but an agent or a manager of the appellant, who works completely under the supervision, control and directions of the appellant(g) The workmen have the protection of continuous employment in the establishment26. Considering these factors cumulatively, in addition to the fact that the canteen in the establishment of the management is a statutory canteen, we are of the opinion that in the instant case, the27. At this stage, it is necessary to note another argument of Mr. Andhyarujina that in view of the fact that there is no abolition of contract labour in the canteen of the appellants establishment, it is open to the management to manage its canteen through a contractor. Hence, he contends that by virtue of the contract entered into by the management with the contractor, then cannot be treated as the employees of the management. This argument would have had some substance if in reality the management had engaged a contractor who was wholly independent of the management, but we have come to the conclusion on facts that the contractor in the present case is engaged only for the purpose of record and for all purposes the workmen in this case are in fact the workmen of the management. In the background of this finding, the last argument of Mr. Andhyarujina should also fail.
|
State of Jharkhand & Others Vs. M/s. K.N. Farms and Industries (P) Ltd | land passes only when the acquisition takes place in accordance with law and the learned Single Judge did not commit any error by directing the appellants to issue fresh notices under Sections 4 and 6 of the 1894 Act. 3. Shri Amrendra Sharan, learned senior counsel appearing for the appellants argued that the impugned order is liable to be set aside because the Division Bench altogether ignored that the direction given by the learned Single Judge for issue of notifications under Sections 4 and 6 of the 1894 Act and passing of an award was clearly beyond the scope of the writ petition filed by the respondent. Shri Sharan emphasied that if the respondent was to file a writ petition in 2005 for issue of a direction to the appellants to initiate the acquisition proceedings in respect of the land of which possession was handed over in 1960, the High Court was bound to dismiss the same only on the ground of unexplained delay of more than four decades and the learned Single Judge committed grave error by issuing a mandamus for which the respondent had not even made a prayer. Learned senior counsel argued that after having accepted the amount of compensation the respondent did not have the locus to press the writ petitions filed by it. He also pointed out that during the pendency of the writ petition filed by it, the respondent had received Rs. 1,48,683/- in LA Case No. 6/61-62 and Rs. 1,57,754/- in LA Case No. 5/63-64.4. Shri Mahabir Singh, learned senior counsel appearing for the respondent supported the orders passed by the learned Single Judge and the Division Bench of the High Court and argued that in the absence of any provision in the 1894 Act, the State Government could not acquire title of the land belonging to the respondent simply by executing an agreement. Learned senior counsel submitted that the appellants were very much conscious of the fact that possession of the land had been taken without acquiring the same in accordance with the provisions of the 1894 Act and that is the reason why they issued notification dated 9.12.1960 under Section 4 and declaration dated 4.4.1961 under Section 6. He further submitted that the respondent was compelled to file the writ petition because no award was passed in furtherance of the acquisition proceedings initiated in 1960. Still further, the learned senior counsel submitted that the respondent had accepted the price of the land by reserving its rights to challenge the action of the appellants and the High Court did not commit any error by directing the appellants to acquire the land by following the procedure prescribed under the 1894 Act and pay compensation in terms of the award to be passed by the Land Acquisition Officer keeping in view the prevailing market value. 5. We have considered the respective submissions. In our view, the order passed by the learned Single Judge was ex-facie erroneous and the Division Bench of the High Court committed grave mistake by approving the same. The direction given by the learned Single Judge to the appellants to issue notifications under Sections 4 and 6 and pay compensation to the respondent in terms of the award to be passed by assessing the value of the acquired land was clearly beyond the scope of W.P. No. 1546 of 2005, a reading of which leaves no manner of doubt that the respondent had not made a grievance that agreement dated 28.2.1960 was ultra vires the provisions of the 1894 Act or that even though possession of a substantial portion of the land specified in the agreement had been handed over on 31.3.1960, the State Government was under a legal obligation to initiate the acquisition proceedings and pay compensation under the 1894 Act. 6. The case set up by the respondent was that even though LRDC had taken possession of the land in furtherance of the agreement, the concerned authority had not paid compensation despite repeated representations and that it was entitled to receive the amount with interest for the period of 45 years. Unfortunately, the learned Single Judge did not notice the pleadings of the writ petition and decided the matter by assuming that the respondent was aggrieved by the inaction of the competent authority to initiate the acquisition proceedings under the 1894 Act and pay compensation determined by the Land Acquisition Officer, who was bound to take into consideration the prevailing market value.7. We have now no doubt that if the learned Single Judge had taken the trouble of going through the pleadings of the case, he would not have issued a mandamus for issue of notifications under Sections 4 and 6, passing of award and payment of compensation to the respondent and that too by overlooking the fact that the respondent had moved the High Court after 45 years of the execution of agreement dated 28.2.1960. The learned Single Judge, who passed order in Civil Review No. 23 of 2008 also committed the same error and passed order dated 24.11.2010 without even adverting to the grievance made by the respondent in the first writ petition. 8. The Division Bench of the High Court did not take cognizance of the grounds on which the appellants had questioned the order passed by the learned Single Judge in W.P. No. 1546 of 2005 and confirmed the order passed by him by erroneously assuming that it was a case of abject failure of the concerned authorities to acquire the land in accordance with the provisions of the 1894 Act. 9. Another grave error committed by the learned Single Judge and the Division Bench of the High Court is that the learned Judges completely overlooked the settled law that in exercise of power under Article 226 of the Constitution, the High Court does not entertain belated claims – State of M.P. v. Bhailal Bhai, (1964) 6 SCR 261 : AIR 1964 SC 1006 and M/s Tilokchand Motichand v. H.B. Munshi (1969) 1 SCC 110. | 1[ds]5. We have considered the respective submissions. In our view, the order passed by the learned Single Judge waserroneous and the Division Bench of the High Court committed grave mistake by approving the same. The direction given by the learned Single Judge to the appellants to issue notifications under Sections 4 and 6 and pay compensation to the respondent in terms of the award to be passed by assessing the value of the acquired land was clearly beyond the scope of W.P. No. 1546 of 2005, a reading of which leaves no manner of doubt that the respondent had not made a grievance that agreement dated 28.2.1960 was ultra vires the provisions of the 1894 Act or that even though possession of a substantial portion of the land specified in the agreement had been handed over on 31.3.1960, the State Government was under a legal obligation to initiate the acquisition proceedings and pay compensation under the 1894the learned Single Judge did not notice the pleadings of the writ petition and decided the matter by assuming that the respondent was aggrieved by the inaction of the competent authority to initiate the acquisition proceedings under the 1894 Act and pay compensation determined by the Land Acquisition Officer, who was bound to take into consideration the prevailing market value.7. We have now no doubt that if the learned Single Judge had taken the trouble of going through the pleadings of the case, he would not have issued a mandamus for issue of notifications under Sections 4 and 6, passing of award and payment of compensation to the respondent and that too by overlooking the fact that the respondent had moved the High Court after 45 years of the execution of agreement dated 28.2.1960. The learned Single Judge, who passed order in Civil Review No. 23 of 2008 also committed the same error and passed order dated 24.11.2010 without even adverting to the grievance made by the respondent in the first writ petition.Another grave error committed by the learned Single Judge and the Division Bench of the High Court is that the learned Judges completely overlooked the settled law that in exercise of power under Article 226 of the Constitution, the High Court does not entertain belated claims – State of M.P. v. Bhailal Bhai, (1964) 6 SCR 261 : AIR 1964 SC 1006 and M/s Tilokchand Motichand v. H.B. Munshi (1969) 1 SCC 110. | 1 | 3,520 | 429 | ### Instruction:
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land passes only when the acquisition takes place in accordance with law and the learned Single Judge did not commit any error by directing the appellants to issue fresh notices under Sections 4 and 6 of the 1894 Act. 3. Shri Amrendra Sharan, learned senior counsel appearing for the appellants argued that the impugned order is liable to be set aside because the Division Bench altogether ignored that the direction given by the learned Single Judge for issue of notifications under Sections 4 and 6 of the 1894 Act and passing of an award was clearly beyond the scope of the writ petition filed by the respondent. Shri Sharan emphasied that if the respondent was to file a writ petition in 2005 for issue of a direction to the appellants to initiate the acquisition proceedings in respect of the land of which possession was handed over in 1960, the High Court was bound to dismiss the same only on the ground of unexplained delay of more than four decades and the learned Single Judge committed grave error by issuing a mandamus for which the respondent had not even made a prayer. Learned senior counsel argued that after having accepted the amount of compensation the respondent did not have the locus to press the writ petitions filed by it. He also pointed out that during the pendency of the writ petition filed by it, the respondent had received Rs. 1,48,683/- in LA Case No. 6/61-62 and Rs. 1,57,754/- in LA Case No. 5/63-64.4. Shri Mahabir Singh, learned senior counsel appearing for the respondent supported the orders passed by the learned Single Judge and the Division Bench of the High Court and argued that in the absence of any provision in the 1894 Act, the State Government could not acquire title of the land belonging to the respondent simply by executing an agreement. Learned senior counsel submitted that the appellants were very much conscious of the fact that possession of the land had been taken without acquiring the same in accordance with the provisions of the 1894 Act and that is the reason why they issued notification dated 9.12.1960 under Section 4 and declaration dated 4.4.1961 under Section 6. He further submitted that the respondent was compelled to file the writ petition because no award was passed in furtherance of the acquisition proceedings initiated in 1960. Still further, the learned senior counsel submitted that the respondent had accepted the price of the land by reserving its rights to challenge the action of the appellants and the High Court did not commit any error by directing the appellants to acquire the land by following the procedure prescribed under the 1894 Act and pay compensation in terms of the award to be passed by the Land Acquisition Officer keeping in view the prevailing market value. 5. We have considered the respective submissions. In our view, the order passed by the learned Single Judge was ex-facie erroneous and the Division Bench of the High Court committed grave mistake by approving the same. The direction given by the learned Single Judge to the appellants to issue notifications under Sections 4 and 6 and pay compensation to the respondent in terms of the award to be passed by assessing the value of the acquired land was clearly beyond the scope of W.P. No. 1546 of 2005, a reading of which leaves no manner of doubt that the respondent had not made a grievance that agreement dated 28.2.1960 was ultra vires the provisions of the 1894 Act or that even though possession of a substantial portion of the land specified in the agreement had been handed over on 31.3.1960, the State Government was under a legal obligation to initiate the acquisition proceedings and pay compensation under the 1894 Act. 6. The case set up by the respondent was that even though LRDC had taken possession of the land in furtherance of the agreement, the concerned authority had not paid compensation despite repeated representations and that it was entitled to receive the amount with interest for the period of 45 years. Unfortunately, the learned Single Judge did not notice the pleadings of the writ petition and decided the matter by assuming that the respondent was aggrieved by the inaction of the competent authority to initiate the acquisition proceedings under the 1894 Act and pay compensation determined by the Land Acquisition Officer, who was bound to take into consideration the prevailing market value.7. We have now no doubt that if the learned Single Judge had taken the trouble of going through the pleadings of the case, he would not have issued a mandamus for issue of notifications under Sections 4 and 6, passing of award and payment of compensation to the respondent and that too by overlooking the fact that the respondent had moved the High Court after 45 years of the execution of agreement dated 28.2.1960. The learned Single Judge, who passed order in Civil Review No. 23 of 2008 also committed the same error and passed order dated 24.11.2010 without even adverting to the grievance made by the respondent in the first writ petition. 8. The Division Bench of the High Court did not take cognizance of the grounds on which the appellants had questioned the order passed by the learned Single Judge in W.P. No. 1546 of 2005 and confirmed the order passed by him by erroneously assuming that it was a case of abject failure of the concerned authorities to acquire the land in accordance with the provisions of the 1894 Act. 9. Another grave error committed by the learned Single Judge and the Division Bench of the High Court is that the learned Judges completely overlooked the settled law that in exercise of power under Article 226 of the Constitution, the High Court does not entertain belated claims – State of M.P. v. Bhailal Bhai, (1964) 6 SCR 261 : AIR 1964 SC 1006 and M/s Tilokchand Motichand v. H.B. Munshi (1969) 1 SCC 110.
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5. We have considered the respective submissions. In our view, the order passed by the learned Single Judge waserroneous and the Division Bench of the High Court committed grave mistake by approving the same. The direction given by the learned Single Judge to the appellants to issue notifications under Sections 4 and 6 and pay compensation to the respondent in terms of the award to be passed by assessing the value of the acquired land was clearly beyond the scope of W.P. No. 1546 of 2005, a reading of which leaves no manner of doubt that the respondent had not made a grievance that agreement dated 28.2.1960 was ultra vires the provisions of the 1894 Act or that even though possession of a substantial portion of the land specified in the agreement had been handed over on 31.3.1960, the State Government was under a legal obligation to initiate the acquisition proceedings and pay compensation under the 1894the learned Single Judge did not notice the pleadings of the writ petition and decided the matter by assuming that the respondent was aggrieved by the inaction of the competent authority to initiate the acquisition proceedings under the 1894 Act and pay compensation determined by the Land Acquisition Officer, who was bound to take into consideration the prevailing market value.7. We have now no doubt that if the learned Single Judge had taken the trouble of going through the pleadings of the case, he would not have issued a mandamus for issue of notifications under Sections 4 and 6, passing of award and payment of compensation to the respondent and that too by overlooking the fact that the respondent had moved the High Court after 45 years of the execution of agreement dated 28.2.1960. The learned Single Judge, who passed order in Civil Review No. 23 of 2008 also committed the same error and passed order dated 24.11.2010 without even adverting to the grievance made by the respondent in the first writ petition.Another grave error committed by the learned Single Judge and the Division Bench of the High Court is that the learned Judges completely overlooked the settled law that in exercise of power under Article 226 of the Constitution, the High Court does not entertain belated claims – State of M.P. v. Bhailal Bhai, (1964) 6 SCR 261 : AIR 1964 SC 1006 and M/s Tilokchand Motichand v. H.B. Munshi (1969) 1 SCC 110.
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Wuntakal Yalpi Chenabasavana Gowd Vs. Rao Bahadur Y. Mahabaleshwarappa And Another | the requisite legal formalities and though the transferee does not acquire a legal title to it by the transfer, yet if he gets possession of the property though with the consent of the transferor that possession becomes adverse to the owner and if continued for the statutory period creates a title in him.8. We are not satisfied from the materials in this case that Nagana was ignorant of his rights as heir of his deceased son when he executed the lease in the year 1926. But even if he was as the exclusive possession of the infant was exercised with the full knowledge and consent of the father who openly acknowledged the title of his son, such possession could not but be adverse to the father. The learned Judges of the High Court seem to be of the opinion that the possession of the minor could be regarded as adverse from the date of the execution of the lease, as the father by being a party to the said document, did exhibit an animus to possess the common property on behalf of the minor alone to the exclusion o himself. But according to the learned Judges this affirms ceased as soon as Nagana executed the mortgage deed in 1935, asserting his right as joint owner of the property in dispute and the adverse possession of the son forthwith came to an end. With this view we are unable to agree.9. Once it is held that the possession of a co-sharer has become adverse to the other co-sharer as a result of the mere assertion of his joint title by the dispossessed co-sharer would not interrupt the running of adverse possession. He must actually and effectively break up the exclusive possession of his co-sharer by re-entry upon the property or by resuming possession in such manner as it was possible to do. It may also check the running of time if the co-sharer who is in exclusive possession acknowledges the title of his co-owner or discontinues his exclusive possession of the property. On the materials on the record, none of these things seems to have been proved in the present case. Resumption of physical possession of re-entry upon the property was absolutely out of the question as the property was in the possession of a lessee.The lease, it should be noted, was executed in 1926 and we have two rent receipts of the years 1927 and 1932 respectively by which Nagana acknowledged receipt of rents on behalf of his infant son in terms of the lease deed. The rent suit in 1934 was also brought by him in his capacity as guardian of defendant. No. 1 and the document Ex. D-3 by which the decree in that suit was discharged and a receipt was given in advance for all the subsequent rents point definitely to the conclusion that the entire rent for the whole period of 12 years was paid to and was accepted on behalf of Chenabasavana and Nagana either received any portion of it nor laid any claim to the same.During the whole period of the lease and up to the present day the minor is admittedly in possession of the property and no act or conduct on his part has been proved either within the period of limitation or even after that which might be regarded as an acknowledgment of the title of his father as co-owner. In our opinion the fact that the father who had allowed himself to be dispossessed by his son exhibited later on his animus to treat the property as the joint property of himself and his son cannot arrest the running of adverse possession in favour of the son. A mere mental act on the part of the person dispossessed unaccompanied by any change of possession cannot affect the continuity of adverse possession of the deseizor.10. The view taken by the High Court probably rests on the supposition that as it was the father, who acting on behalf of his son, asserted the exclusive title of the son to the property in denial of his own rights, it was open to the father again if he so chose to resale from that position and make a fresh declaration that the property was not the sole property of the son but belonged to him as well; and this subsequent act would annul the consequences of his previous act. This reasoning does not appear to us to be sound. The fathers acts in connection with the lease were entirely in his capably as guardian of his son. In the eye of the law they were this acts of the son, but the creation of the mortgage in 1935 was not the act of the father on behalf of his son; it was the personal act of the father himself qua co-proprietor of the son and the interest of one being adverse to the other such acts could not be held to be acts of the so performed through the father. It is extremely doubtful whether qua guardian the father could make such declaration at all. Any change of intention on the part of the guardian alone and the minor can react to it again only through the guardian.It may be proper in such cases for the father to renounce his guardianship before he could assert any right of his own against his ward; but it is not necessary for us to go into that question, as the mortgage in this case was made by the father not as guardian of the minor at all. It was no more than a declaration, by a person who dispossessed by his co-sharer, of his joint title to the property and as has been already pointed out, as it did not involve any change of possession it did not affect the adverse possession of the deseizor. In our opinion, therefore the view taken by the learned Judges of the High Court is not proper and cannot be sustained. | 1[ds]We must take it therefore that after the death of Siddalingana, Nagana became a co-owner of the disputed property with his minor son Chenabasavana. As the plaintiff purports to derive his title as a co-owner with defendant No. 1 and this being the position, the presumption of law would be that the possession of one co-owner was on behalf of the other also unless actual owner was proved.We are not satisfied from the materials in this case that Nagana was ignorant of his rights as heir of his deceased son when he executed the lease in the year 1926. But even if he was as the exclusive possession of the infant was exercised with the full knowledge and consent of the father who openly acknowledged the title of his son, such possession could not but be adverse to the father. The learned Judges of the High Court seem to be of the opinion that the possession of the minor could be regarded as adverse from the date of the execution of the lease, as the father by being a party to the said document, did exhibit an animus to possess the common property on behalf of the minor alone to the exclusion o himself. But according to the learned Judges this affirms ceased as soon as Nagana executed the mortgage deed in 1935, asserting his right as joint owner of the property in dispute and the adverse possession of the son forthwith came to an end. With this view we are unable to agree.9. Once it is held that the possession of a co-sharer has become adverse to the other co-sharer as a result of the mere assertion of his joint title by the dispossessed co-sharer would not interrupt the running of adverse possession. He must actually and effectively break up the exclusive possession of his co-sharer by re-entry upon the property or by resuming possession in such manner as it was possible to do. It may also check the running of time if the co-sharer who is in exclusive possession acknowledges the title of his co-owner or discontinues his exclusive possession of the property. On the materials on the record, none of these things seems to have been proved in the present case. Resumption of physical possession of re-entry upon the property was absolutely out of the question as the property was in the possession of athe whole period of the lease and up to the present day the minor is admittedly in possession of the property and no act or conduct on his part has been proved either within the period of limitation or even after that which might be regarded as an acknowledgment of the title of his father as co-owner. In our opinion the fact that the father who had allowed himself to be dispossessed by his son exhibited later on his animus to treat the property as the joint property of himself and his son cannot arrest the running of adverse possession in favour of the son. A mere mental act on the part of the person dispossessed unaccompanied by any change of possession cannot affect the continuity of adverse possession of the deseizor.10. The view taken by the High Court probably rests on the supposition that as it was the father, who acting on behalf of his son, asserted the exclusive title of the son to the property in denial of his own rights, it was open to the father again if he so chose to resale from that position and make a fresh declaration that the property was not the sole property of the son but belonged to him as well; and this subsequent act would annul the consequences of his previous act. This reasoning does not appear to us to be sound. The fathers acts in connection with the lease were entirely in his capably as guardian of his son. In the eye of the law they were this acts of the son, but the creation of the mortgage in 1935 was not the act of the father on behalf of his son; it was the personal act of the father himself qua co-proprietor of the son and the interest of one being adverse to the other such acts could not be held to be acts of the so performed through the father. It is extremely doubtful whether qua guardian the father could make such declaration at all. Any change of intention on the part of the guardian alone and the minor can react to it again only through the guardian.It may be proper in such cases for the father to renounce his guardianship before he could assert any right of his own against his ward; but it is not necessary for us to go into that question, as the mortgage in this case was made by the father not as guardian of the minor at all. It was no more than a declaration, by a person who dispossessed by his co-sharer, of his joint title to the property and as has been already pointed out, as it did not involve any change of possession it did not affect the adverse possession of the deseizor. In our opinion, therefore the view taken by the learned Judges of the High Court is not proper and cannot be | 1 | 3,129 | 931 | ### Instruction:
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the requisite legal formalities and though the transferee does not acquire a legal title to it by the transfer, yet if he gets possession of the property though with the consent of the transferor that possession becomes adverse to the owner and if continued for the statutory period creates a title in him.8. We are not satisfied from the materials in this case that Nagana was ignorant of his rights as heir of his deceased son when he executed the lease in the year 1926. But even if he was as the exclusive possession of the infant was exercised with the full knowledge and consent of the father who openly acknowledged the title of his son, such possession could not but be adverse to the father. The learned Judges of the High Court seem to be of the opinion that the possession of the minor could be regarded as adverse from the date of the execution of the lease, as the father by being a party to the said document, did exhibit an animus to possess the common property on behalf of the minor alone to the exclusion o himself. But according to the learned Judges this affirms ceased as soon as Nagana executed the mortgage deed in 1935, asserting his right as joint owner of the property in dispute and the adverse possession of the son forthwith came to an end. With this view we are unable to agree.9. Once it is held that the possession of a co-sharer has become adverse to the other co-sharer as a result of the mere assertion of his joint title by the dispossessed co-sharer would not interrupt the running of adverse possession. He must actually and effectively break up the exclusive possession of his co-sharer by re-entry upon the property or by resuming possession in such manner as it was possible to do. It may also check the running of time if the co-sharer who is in exclusive possession acknowledges the title of his co-owner or discontinues his exclusive possession of the property. On the materials on the record, none of these things seems to have been proved in the present case. Resumption of physical possession of re-entry upon the property was absolutely out of the question as the property was in the possession of a lessee.The lease, it should be noted, was executed in 1926 and we have two rent receipts of the years 1927 and 1932 respectively by which Nagana acknowledged receipt of rents on behalf of his infant son in terms of the lease deed. The rent suit in 1934 was also brought by him in his capacity as guardian of defendant. No. 1 and the document Ex. D-3 by which the decree in that suit was discharged and a receipt was given in advance for all the subsequent rents point definitely to the conclusion that the entire rent for the whole period of 12 years was paid to and was accepted on behalf of Chenabasavana and Nagana either received any portion of it nor laid any claim to the same.During the whole period of the lease and up to the present day the minor is admittedly in possession of the property and no act or conduct on his part has been proved either within the period of limitation or even after that which might be regarded as an acknowledgment of the title of his father as co-owner. In our opinion the fact that the father who had allowed himself to be dispossessed by his son exhibited later on his animus to treat the property as the joint property of himself and his son cannot arrest the running of adverse possession in favour of the son. A mere mental act on the part of the person dispossessed unaccompanied by any change of possession cannot affect the continuity of adverse possession of the deseizor.10. The view taken by the High Court probably rests on the supposition that as it was the father, who acting on behalf of his son, asserted the exclusive title of the son to the property in denial of his own rights, it was open to the father again if he so chose to resale from that position and make a fresh declaration that the property was not the sole property of the son but belonged to him as well; and this subsequent act would annul the consequences of his previous act. This reasoning does not appear to us to be sound. The fathers acts in connection with the lease were entirely in his capably as guardian of his son. In the eye of the law they were this acts of the son, but the creation of the mortgage in 1935 was not the act of the father on behalf of his son; it was the personal act of the father himself qua co-proprietor of the son and the interest of one being adverse to the other such acts could not be held to be acts of the so performed through the father. It is extremely doubtful whether qua guardian the father could make such declaration at all. Any change of intention on the part of the guardian alone and the minor can react to it again only through the guardian.It may be proper in such cases for the father to renounce his guardianship before he could assert any right of his own against his ward; but it is not necessary for us to go into that question, as the mortgage in this case was made by the father not as guardian of the minor at all. It was no more than a declaration, by a person who dispossessed by his co-sharer, of his joint title to the property and as has been already pointed out, as it did not involve any change of possession it did not affect the adverse possession of the deseizor. In our opinion, therefore the view taken by the learned Judges of the High Court is not proper and cannot be sustained.
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### Explanation:
We must take it therefore that after the death of Siddalingana, Nagana became a co-owner of the disputed property with his minor son Chenabasavana. As the plaintiff purports to derive his title as a co-owner with defendant No. 1 and this being the position, the presumption of law would be that the possession of one co-owner was on behalf of the other also unless actual owner was proved.We are not satisfied from the materials in this case that Nagana was ignorant of his rights as heir of his deceased son when he executed the lease in the year 1926. But even if he was as the exclusive possession of the infant was exercised with the full knowledge and consent of the father who openly acknowledged the title of his son, such possession could not but be adverse to the father. The learned Judges of the High Court seem to be of the opinion that the possession of the minor could be regarded as adverse from the date of the execution of the lease, as the father by being a party to the said document, did exhibit an animus to possess the common property on behalf of the minor alone to the exclusion o himself. But according to the learned Judges this affirms ceased as soon as Nagana executed the mortgage deed in 1935, asserting his right as joint owner of the property in dispute and the adverse possession of the son forthwith came to an end. With this view we are unable to agree.9. Once it is held that the possession of a co-sharer has become adverse to the other co-sharer as a result of the mere assertion of his joint title by the dispossessed co-sharer would not interrupt the running of adverse possession. He must actually and effectively break up the exclusive possession of his co-sharer by re-entry upon the property or by resuming possession in such manner as it was possible to do. It may also check the running of time if the co-sharer who is in exclusive possession acknowledges the title of his co-owner or discontinues his exclusive possession of the property. On the materials on the record, none of these things seems to have been proved in the present case. Resumption of physical possession of re-entry upon the property was absolutely out of the question as the property was in the possession of athe whole period of the lease and up to the present day the minor is admittedly in possession of the property and no act or conduct on his part has been proved either within the period of limitation or even after that which might be regarded as an acknowledgment of the title of his father as co-owner. In our opinion the fact that the father who had allowed himself to be dispossessed by his son exhibited later on his animus to treat the property as the joint property of himself and his son cannot arrest the running of adverse possession in favour of the son. A mere mental act on the part of the person dispossessed unaccompanied by any change of possession cannot affect the continuity of adverse possession of the deseizor.10. The view taken by the High Court probably rests on the supposition that as it was the father, who acting on behalf of his son, asserted the exclusive title of the son to the property in denial of his own rights, it was open to the father again if he so chose to resale from that position and make a fresh declaration that the property was not the sole property of the son but belonged to him as well; and this subsequent act would annul the consequences of his previous act. This reasoning does not appear to us to be sound. The fathers acts in connection with the lease were entirely in his capably as guardian of his son. In the eye of the law they were this acts of the son, but the creation of the mortgage in 1935 was not the act of the father on behalf of his son; it was the personal act of the father himself qua co-proprietor of the son and the interest of one being adverse to the other such acts could not be held to be acts of the so performed through the father. It is extremely doubtful whether qua guardian the father could make such declaration at all. Any change of intention on the part of the guardian alone and the minor can react to it again only through the guardian.It may be proper in such cases for the father to renounce his guardianship before he could assert any right of his own against his ward; but it is not necessary for us to go into that question, as the mortgage in this case was made by the father not as guardian of the minor at all. It was no more than a declaration, by a person who dispossessed by his co-sharer, of his joint title to the property and as has been already pointed out, as it did not involve any change of possession it did not affect the adverse possession of the deseizor. In our opinion, therefore the view taken by the learned Judges of the High Court is not proper and cannot be
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U O I Vs. M/S.Krimpex Synthetics Ltd | fixed assets before the cut off date and therefore the respondent was entitled to the maximum subsidy of Rs. 25 Lacs. This contention has been rejected by the High Court by observing that material which had not been placed before Mrs. Karan could not be taken into consideration because as per remand order the High Court was to keep in view the order passed by the Joint Secretary, though the High Court could take its own decision on merit of the case. It was observed that since the respondent had not placed the material before the Joint Secretary which was sought to be produced before the High Court the same could not be taken into consideration. The only material which could be taken into consideration was the material which had been placed before Mrs. Karan. After analysing the order of Mrs. Karan the High Court came to the conclusion that Mrs. Karan had erred in rejecting the claim of the respondent in its entirety. It was held that the respondent was entitled to subsidy of 25% on the sum of Rs. 50,72,258/- 12. The respondent has filed the Special Leave Petition No. 22036 of 1997 claiming the maximum subsidy for the sum of Rs. 25 lacs. It was submitted by Shri Gopal Jain, learned counsel appearing for the respondent, that the respondent was entitled to maximum subsidy available under the scheme to the tune of Rs. 25 lacs. Mr. Jain, fairly conceded before us that the material which was placed along with the additional affidavit before the High Court had not been placed before Mrs. Karan, Joint Secretary. We agree with the view taken by the High Court that the only material which could be taken into consideration was the one which was produced before the Joint Secretary as this Court had remanded the case to the High Court to take the final decision keeping in view the order passed by the Joint Secretary. From the remand order it can be deciphered that the High Court was not supposed to entertain any fresh material. An opportunity was given to the claimants to file their representations to the Joint Secretary along with the material on the basis of which decision was taken by the Joint Secretary regarding the eligibility of the claimant to get the subsidy. The material which was sought to be produced before the High Court should have been produced before the Joint Secretary and it was for the Joint Secretary to take the decision on the same. Since the material had not been placed before the Joint Secretary the same could not be taken into consideration by the High Court and the contention raised by the respondent to the contrary has rightly been rejected. 13. Union of India has filed the appeal with the averment that premises of the respondent-Company were closed and the Company seems to have gone in liquidation. According to the counsel for the Union of India as per scheme a Company which went out of production within the period of 5 years of the start of production was not entitled to the subsidy under the Scheme. Apart from the averment that Company seems to have gone into liquidation no other material was placed before the High Court to show that in fact the company had gone into liquidation or that the liquidator had been appointed. Counsel appearing for the respondent in the High Court had fairly brought to the notice of the Court that ICICI and other financial institutions on the original side of the Bombay High Court had filed the suit bearing O.S. No. 1595 of 1989 and the Court had appointed Court Receiver in respect of the land, building, plant and machinery etc. The receiver had been appointed under Order 40 Rule 1 CPC. No order of winding up of the Company was passed. No official liquidator had been appointed to take over the assets of the Company. As per Mr. Gopal Jain, learned counsel appearing for the respondent, the receiver had appointed the respondent as its agent. According to him, the Company did not close down and remained in production. From the material which had been placed before the High Court and even before us it cannot be concluded that the Company had gone into liquidation or had closed down. Contention raised by the counsel for the Union of India that the respondent were not entitled to any subsidy thus cannot be accepted. 14. No other point was raised. 15. Mr. Gopal Jain submitted before us that the respondent had entered into a settlement with the ICICI Ltd. and the Industrial Finance Corporation of India. The consent terms were filed before the Debt Recovery Tribunal - II, Mumbai in Recovery Proceeding No. 54 of 2001 [Original Application No. 156 of 2001] and that the respondent had already made the payment to the ICICI Ltd. and IFCI as per consent terms. He prayed that instead of depositing the amount of subsidy in Court as directed by the High Court the Union of India be directed to make the payment to the respondent directly along with interest. It was conceded before us, that the suit referred to by the High Court in its order is still pending. Under the circumstances we direct that the subsidy amount which was supposed to be deposited by the Union of India within three months from the date of the order of the High Court, i.e., 26/27th November, 1996 and which has not been deposited be deposited within three months from this day in the Court along with simple interest @ 9% per annum from the date of the passing of the order by the High Court till deposit of the amount. Respondent would be at liberty to apply to the Court for release of the amount deposited, if it has already settled its dispute with the ICICI and IFCI. The Court shall pass an order on such an application on its own merit in accordance with law. | 0[ds]It was submitted by Shri Gopal Jain, learned counsel appearing for the respondent, that the respondent was entitled to maximum subsidy available under the scheme to the tune of Rs. 25 lacs. Mr. Jain, fairly conceded before us that the material which was placed along with the additional affidavit before the High Court had not been placed before Mrs. Karan, JointSecretary.We agree with the view taken by the High Court that the only material which could be taken into consideration was the one which was produced before the Joint Secretary as this Court had remanded the case to the High Court to take the final decision keeping in view the order passed by the JointSecretary.From the remand order it can be deciphered that the High Court was not supposed to entertain any fresh material. An opportunity was given to the claimants to file their representations to the Joint Secretary along with the material on the basis of which decision was taken by the Joint Secretary regarding the eligibility of the claimant to get the subsidy. The material which was sought to be produced before the High Court should have been produced before the Joint Secretary and it was for the Joint Secretary to take the decision on the same. Since the material had not been placed before the Joint Secretary the same could not be taken into consideration by the High Court and the contention raised by the respondent to the contrary has rightly been rejectedom the material which had been placed before the High Court and even before us it cannot be concluded that the Company had gone into liquidation or had closed down. Contention raised by the counsel for the Union of India that the respondent were not entitled to any subsidy thus cannot be accepted14. No other point was raisedMr. Gopal Jain submitted before us that the respondent had entered into a settlement with the ICICI Ltd. and the Industrial Finance Corporation of India.The consent terms were filed before the Debt Recovery Tribunal - II, Mumbai in Recovery Proceeding No. 54 of 2001 [Original Application No. 156 of 2001] and that the respondent had already made the payment to the ICICI Ltd. and IFCI as per consent terms. He prayed that instead of depositing the amount of subsidy in Court as directed by the High Court the Union of India be directed to make the payment to the respondent directly along with interest. It was conceded before us, that the suit referred to by the High Court in its order is still pending. Under the circumstances we direct that the subsidy amount which was supposed to be deposited by the Union of India within three months from the date of the order of the High Court, i.e., 26/27th November, 1996 and which has not been deposited be deposited within three months from this day in the Court along with simple interest @ 9% per annum from the date of the passing of the order by the High Court till deposit of the amount. Respondent would be at liberty to apply to the Court for release of the amount deposited, if it has already settled its dispute with the ICICI and IFCI. The Court shall pass an order on such an application on its own merit in accordance with law | 0 | 2,813 | 586 | ### 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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fixed assets before the cut off date and therefore the respondent was entitled to the maximum subsidy of Rs. 25 Lacs. This contention has been rejected by the High Court by observing that material which had not been placed before Mrs. Karan could not be taken into consideration because as per remand order the High Court was to keep in view the order passed by the Joint Secretary, though the High Court could take its own decision on merit of the case. It was observed that since the respondent had not placed the material before the Joint Secretary which was sought to be produced before the High Court the same could not be taken into consideration. The only material which could be taken into consideration was the material which had been placed before Mrs. Karan. After analysing the order of Mrs. Karan the High Court came to the conclusion that Mrs. Karan had erred in rejecting the claim of the respondent in its entirety. It was held that the respondent was entitled to subsidy of 25% on the sum of Rs. 50,72,258/- 12. The respondent has filed the Special Leave Petition No. 22036 of 1997 claiming the maximum subsidy for the sum of Rs. 25 lacs. It was submitted by Shri Gopal Jain, learned counsel appearing for the respondent, that the respondent was entitled to maximum subsidy available under the scheme to the tune of Rs. 25 lacs. Mr. Jain, fairly conceded before us that the material which was placed along with the additional affidavit before the High Court had not been placed before Mrs. Karan, Joint Secretary. We agree with the view taken by the High Court that the only material which could be taken into consideration was the one which was produced before the Joint Secretary as this Court had remanded the case to the High Court to take the final decision keeping in view the order passed by the Joint Secretary. From the remand order it can be deciphered that the High Court was not supposed to entertain any fresh material. An opportunity was given to the claimants to file their representations to the Joint Secretary along with the material on the basis of which decision was taken by the Joint Secretary regarding the eligibility of the claimant to get the subsidy. The material which was sought to be produced before the High Court should have been produced before the Joint Secretary and it was for the Joint Secretary to take the decision on the same. Since the material had not been placed before the Joint Secretary the same could not be taken into consideration by the High Court and the contention raised by the respondent to the contrary has rightly been rejected. 13. Union of India has filed the appeal with the averment that premises of the respondent-Company were closed and the Company seems to have gone in liquidation. According to the counsel for the Union of India as per scheme a Company which went out of production within the period of 5 years of the start of production was not entitled to the subsidy under the Scheme. Apart from the averment that Company seems to have gone into liquidation no other material was placed before the High Court to show that in fact the company had gone into liquidation or that the liquidator had been appointed. Counsel appearing for the respondent in the High Court had fairly brought to the notice of the Court that ICICI and other financial institutions on the original side of the Bombay High Court had filed the suit bearing O.S. No. 1595 of 1989 and the Court had appointed Court Receiver in respect of the land, building, plant and machinery etc. The receiver had been appointed under Order 40 Rule 1 CPC. No order of winding up of the Company was passed. No official liquidator had been appointed to take over the assets of the Company. As per Mr. Gopal Jain, learned counsel appearing for the respondent, the receiver had appointed the respondent as its agent. According to him, the Company did not close down and remained in production. From the material which had been placed before the High Court and even before us it cannot be concluded that the Company had gone into liquidation or had closed down. Contention raised by the counsel for the Union of India that the respondent were not entitled to any subsidy thus cannot be accepted. 14. No other point was raised. 15. Mr. Gopal Jain submitted before us that the respondent had entered into a settlement with the ICICI Ltd. and the Industrial Finance Corporation of India. The consent terms were filed before the Debt Recovery Tribunal - II, Mumbai in Recovery Proceeding No. 54 of 2001 [Original Application No. 156 of 2001] and that the respondent had already made the payment to the ICICI Ltd. and IFCI as per consent terms. He prayed that instead of depositing the amount of subsidy in Court as directed by the High Court the Union of India be directed to make the payment to the respondent directly along with interest. It was conceded before us, that the suit referred to by the High Court in its order is still pending. Under the circumstances we direct that the subsidy amount which was supposed to be deposited by the Union of India within three months from the date of the order of the High Court, i.e., 26/27th November, 1996 and which has not been deposited be deposited within three months from this day in the Court along with simple interest @ 9% per annum from the date of the passing of the order by the High Court till deposit of the amount. Respondent would be at liberty to apply to the Court for release of the amount deposited, if it has already settled its dispute with the ICICI and IFCI. The Court shall pass an order on such an application on its own merit in accordance with law.
### Response:
0
### Explanation:
It was submitted by Shri Gopal Jain, learned counsel appearing for the respondent, that the respondent was entitled to maximum subsidy available under the scheme to the tune of Rs. 25 lacs. Mr. Jain, fairly conceded before us that the material which was placed along with the additional affidavit before the High Court had not been placed before Mrs. Karan, JointSecretary.We agree with the view taken by the High Court that the only material which could be taken into consideration was the one which was produced before the Joint Secretary as this Court had remanded the case to the High Court to take the final decision keeping in view the order passed by the JointSecretary.From the remand order it can be deciphered that the High Court was not supposed to entertain any fresh material. An opportunity was given to the claimants to file their representations to the Joint Secretary along with the material on the basis of which decision was taken by the Joint Secretary regarding the eligibility of the claimant to get the subsidy. The material which was sought to be produced before the High Court should have been produced before the Joint Secretary and it was for the Joint Secretary to take the decision on the same. Since the material had not been placed before the Joint Secretary the same could not be taken into consideration by the High Court and the contention raised by the respondent to the contrary has rightly been rejectedom the material which had been placed before the High Court and even before us it cannot be concluded that the Company had gone into liquidation or had closed down. Contention raised by the counsel for the Union of India that the respondent were not entitled to any subsidy thus cannot be accepted14. No other point was raisedMr. Gopal Jain submitted before us that the respondent had entered into a settlement with the ICICI Ltd. and the Industrial Finance Corporation of India.The consent terms were filed before the Debt Recovery Tribunal - II, Mumbai in Recovery Proceeding No. 54 of 2001 [Original Application No. 156 of 2001] and that the respondent had already made the payment to the ICICI Ltd. and IFCI as per consent terms. He prayed that instead of depositing the amount of subsidy in Court as directed by the High Court the Union of India be directed to make the payment to the respondent directly along with interest. It was conceded before us, that the suit referred to by the High Court in its order is still pending. Under the circumstances we direct that the subsidy amount which was supposed to be deposited by the Union of India within three months from the date of the order of the High Court, i.e., 26/27th November, 1996 and which has not been deposited be deposited within three months from this day in the Court along with simple interest @ 9% per annum from the date of the passing of the order by the High Court till deposit of the amount. Respondent would be at liberty to apply to the Court for release of the amount deposited, if it has already settled its dispute with the ICICI and IFCI. The Court shall pass an order on such an application on its own merit in accordance with law
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Management Of Fertilizer Corporation Ofindia Vs. The Workmen | a letter dated October 13, 1966 sent by the Labour Commissioner to the appellant and the unions concerned containing a copy of the telegram sent by him on that date regarding the conciliation proceedings being fixed on October 17, at Chandigarh and requesting the parties to appear before him. That the said telegram and letter have been sent is proved by the evidence of R. W. 1 who is an Assistant in the Labour Commissioners Office at Chandigarh and who has produced the necessary file pertaining to the same. That the telegram sent by the Labour Commissioner has been delivered is also proved by R. W. 3 who has produced the delivery sheets in respect of the telegram. Relying upon these circumstances quite naturally, Mr. Gokhale strenuously urged that the receipt of the telegram issued by the Labour Commissioner is purposely denied by the Union to profess ignorance about the conciliation proceedings being taken up on October 17, 1966, because the Union was in no mood to participate in those proceedings.42. Mr. Sen, no doubt relied upon the evidence of the workmens witness No. 3, Shri Ramthirtha, President of the Union, that no telegram was received from the Labour Commissioner regarding conciliation proceedings to take place on October 17, 1966, but this witness himself accepts that the telegram sent by Mr. Vidhyalankar was received by him. We are inclined to accept the contention of Mr. Gokhale that the denial by the Union of the receipt of the telegram sent by the Labour Commissioner cannot be accepted.43. Mr. Gokhale, learned counsel, referred us to be decision of this Court in The Management of Chandramalai Estate, Ernakulam v. Its Workmen, 1960-3 SCR 451 = (AIR 1960 SC 902 ) and particularly to the following observations at p. 455 (of SCR) = (at p. 904 of AIR)."While on the one hand it has to be remembered that strike is a legitimate and sometimes unavoidable weapon in the hands of labour it is equally important to remember that indiscriminate and hasty use of this weapon should not be encouraged. It will not be right for labour to think that for any kind of demand a strike can be commenced with impunity without exhausting reasonable avenues for peaceful achievement of their objects. There may be case where the demand is of such an urgent and serious nature that it would not be reasonable to expect labour to wait till after asking the Government to make a reference. In such cases, strike even before such a request has been made may well be justified."Mr. Gokhale urged that there was absolutely no urgency in the case before us because the management was prepared to pay the bonus as admitted by them and the controversy was really regarding the additional ex gratia payment. Further, counsel pointed out that the Conciliation Officer had not made any report about conciliation having failed and in fact that telegram sent by the Labour Commissioner as late as October 13, 1966 clearly showed that he was still continuing the proceedings. Counsel also pointed out that after having separated from the Delhi meeting on October 15, 1966, promising to consider the proposals put before it by the management and communicate the same to the management, the leaders of the workmen incited them to go on strike at the meeting held the very next day and actually the strike itself commenced from October 17, 1966. No doubt Mr. Sen, learned counsel, pointed out that there was nothing for the management to consider in their meeting the demands of the workmen, because the Cabinet decision was well known. He also urged that the workmen obviously felt that the management was not adopting a reasonable attitude and hence they resorted to a strike which was justified under the circumstances.44. We may also indicate that there is evidence, let in by the management, to show that during the strike period and even prior to that, several of the workmen resorted to violence and other acts of indecency. Evidence has also been let in to show that the workmen continued the strike even after a notification, dated October 31, 1966 was issued by the President of India prohibiting the strike and requiring the workers to report for duty. We do not propose to dwell on these matters, because we have only to consider the justification or otherwise of the strike from October 17, to October 31, 1966.45. The management was prepared to pay at all times the bonus as per the Bonus Act. They had also announced on September 9, 1966 the introduction of the production bonus scheme. They were actively taking part in the conciliation proceedings. The appellant also made to the Union certain proposals on October 15, 1966 at the conference held at Delhi which proposals the representatives of the workmen promised to discuss with the workmen and give a reply to the appellant. But, on October 16, 1966, at a meeting of the workmen, they were incited to go on strike. The receipt of the telegram of October 13, 1966 of the Labour commissioner, fixing October 17, 1966 for further discussions and inviting the Union and the management to attend the meeting, is falsely denied by the Union. The receipt of Sri Vidhyalankars telegram requesting the Union to put off going on strike by one day is admitted by the President of the Union, but that request was not complied with by the workmen. Sri Vidhyalankar, it must be remembered, was representing the workmen in certain conciliation meetings All these circumstances clearly show that the demand of the Union regarding ex gratia bonus cannot be considered to be of an urgent and serious nature. They also show that the launching of the strike was unjustified. It therefore follows that the workmen are not entitled to any wages for the period of the strike viz., from October 17 to October 31, 1966. To this extent the award of the Industrial Tribunal will have to be set aside. | 1[ds]We are not inclined to accept the contention of Mr. Gokhale that the appellant was not bound to implement the directions contained in the Circular letter of the Government dated December 21, 1965, containing the Cabinet decision of December 2, 1965, nor his further contention that the claim of the workmen for bonus should have been adjudicated upon exclusively as per the provisions of the Bonus Act without reference to the Cabinetwe are of opinion that the draft letter of October 14, 1966 (which is discussed later on by us) constitutes an offer made by the appellant to the workmen to opt for payment of bonus either according to the Cabinet decision or according to the production bonus scheme, it becomes unnecessary for us to investigate the nature of the power that is exercised either by the President or the Central Government when giving directions to the appellant company, under the Articles of Association. For the same reason the question as to whether the circular letter of the Central Government, dated December 21, 1965 is a direction or order, as envisaged by the Articles of Association, does not also arise for consideration.25. The decision of the Central Cabinet dated December 2, 1965 has been announced by the Minister in the Lok Sabha on December 9, 1965 and this decision has been communicated to the appellant by the concerned Ministry by Circular letter dated December 21, 1965. There is not controversy that if the Cabinet decision is given effect to, the claim of the workmen of ex gratia payment of bonus as in previous years will have to be accepted, unless the appellant is able to establish its plea that the production bonus scheme was introduced with the consent and approval of the Central Government in lieu of ex gratia payment of bonus. As to whether the appellant has succeeded in establishing this plea is an aspect which will be adverted to by us at a later stage.Mr. Gokhale attempted to explain away the effect of the draft letter of October 14, 1966 by urging that the Cabinet decision has been communicated only after the Union had submitted its charter of demands as early as August 19, 1966. So long as the Cabinet decision has been communicated and option was given to the workmen, it does not in our opinion matter at what stage the communication was made to the labour. Under the circumstances, it is idle for the management to contend either that the appellant is not bound to comply with the Cabinet decision or that the workmen are not entitled to make any claim on the basis of that decision.29.That leaves us with the alternative contention, raised by the management, that production bonus scheme was introduced with the consent and approval of the Central Government and that on its introduction the ex gratia payment of bonus stood eliminated.No doubt this is the stand that has been taken in the note attached by the appellant in its Circular letter dated September 9, 1966. We have already adverted to that note in the earlier part of our judgment. No materials, whatsoever, have been placed by the appellant in support of this contention.The production bonus scheme itself does not state that it is in lieu of all other ex gratia payments. There is no order of Government on record to show that the Circular letter of December 21, 1965 has been modified by the Government in any manner whatsoever. The only evidence relied on by the appellant in this connection was the statement of R. W. 7, Shri Wadhera.He says that after a consideration of all the relevant factors and in consultation and with the approval of the Central Government, a production bonus scheme was introduced by the appellant with effect from year 1965-66 and that he was himself present at a meeting in the Ministry when a decision was taken that the Corporation might introduce the production bonus scheme and that the workmen should be paid production bonus in addition to the bonus payable under the Bonus Act. He further speaks to the fact that production bonus scheme replaced the ad hoc ex gratia bonus scheme replaced the ad hoc ex gratia bonus made in the past years.Excepting this bare statement in the Central Government to this effect, or modifying its previous decisions, has been placed before the Tribunal, Under those circumstances, the Tribunal was perfectly justified in holding that the appellant has not established that on the introduction of the production bonus scheme, all payments of ex gratia bonus ceased.Once it is held, as we do, in agreement with the Tribunal, that the appellant was bound to implement the Circular of the Central Government, dated December 21, 1965, it follows that the appellant was bound to pay the ex gratia payment of bonus, as claimed by the workmen for the years in question and that the appellant is further not entitled to deduct the advanced wages of a 4 days paid for the year 1965-66.The decision of the Tribunal, on this aspect is correct and is affirmed.Shri Wadehra, in his affidavit dated June 24, 1967 has again stated that the Chief Conciliation Officer invited representatives of the workmen to come to Delhi to discuss the matter with the higher authorities of the appellant Corporation. Shri Wadehra further states that he himself joined the negotiations which took place at Delhi from October 15, 1966 and that the said negotiations were attended by the Managing Director and Chairman on behalf of the appellant and Mr. Vidhyalankar attended the proceedings along with certain other representative of the workmen. Mr. Wadehra further states that on the evening of October 15, 1966 the workmens representatives intimated that they would discuss the outcome of the negotiations at Delhi with the general body of the workmen at Nangal, the next day, and then return to Delhi and report the reaction of the workmen regarding the proposals discussed during the negotiations, But, instead of keeping this promise the representatives of workmen addressed a public meeting on the evening of October 16, 1966 and incited the workmen to strike work from October 17, 1966. The strike was actually commenced from October 17 Mr. Wadehra also stated that a telegram from the Secretary of the Labour Ministry inviting all the parties to attend the conciliation meeting at Chandigarh on October 17, 1966 was received but the labour did not care to attend thatManagement of Chandramalai Estate, Ernakulam v. Its Workmen, 1960-3 SCR 451 = (AIR 1960 SC 902 ) | 1 | 9,184 | 1,165 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
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a letter dated October 13, 1966 sent by the Labour Commissioner to the appellant and the unions concerned containing a copy of the telegram sent by him on that date regarding the conciliation proceedings being fixed on October 17, at Chandigarh and requesting the parties to appear before him. That the said telegram and letter have been sent is proved by the evidence of R. W. 1 who is an Assistant in the Labour Commissioners Office at Chandigarh and who has produced the necessary file pertaining to the same. That the telegram sent by the Labour Commissioner has been delivered is also proved by R. W. 3 who has produced the delivery sheets in respect of the telegram. Relying upon these circumstances quite naturally, Mr. Gokhale strenuously urged that the receipt of the telegram issued by the Labour Commissioner is purposely denied by the Union to profess ignorance about the conciliation proceedings being taken up on October 17, 1966, because the Union was in no mood to participate in those proceedings.42. Mr. Sen, no doubt relied upon the evidence of the workmens witness No. 3, Shri Ramthirtha, President of the Union, that no telegram was received from the Labour Commissioner regarding conciliation proceedings to take place on October 17, 1966, but this witness himself accepts that the telegram sent by Mr. Vidhyalankar was received by him. We are inclined to accept the contention of Mr. Gokhale that the denial by the Union of the receipt of the telegram sent by the Labour Commissioner cannot be accepted.43. Mr. Gokhale, learned counsel, referred us to be decision of this Court in The Management of Chandramalai Estate, Ernakulam v. Its Workmen, 1960-3 SCR 451 = (AIR 1960 SC 902 ) and particularly to the following observations at p. 455 (of SCR) = (at p. 904 of AIR)."While on the one hand it has to be remembered that strike is a legitimate and sometimes unavoidable weapon in the hands of labour it is equally important to remember that indiscriminate and hasty use of this weapon should not be encouraged. It will not be right for labour to think that for any kind of demand a strike can be commenced with impunity without exhausting reasonable avenues for peaceful achievement of their objects. There may be case where the demand is of such an urgent and serious nature that it would not be reasonable to expect labour to wait till after asking the Government to make a reference. In such cases, strike even before such a request has been made may well be justified."Mr. Gokhale urged that there was absolutely no urgency in the case before us because the management was prepared to pay the bonus as admitted by them and the controversy was really regarding the additional ex gratia payment. Further, counsel pointed out that the Conciliation Officer had not made any report about conciliation having failed and in fact that telegram sent by the Labour Commissioner as late as October 13, 1966 clearly showed that he was still continuing the proceedings. Counsel also pointed out that after having separated from the Delhi meeting on October 15, 1966, promising to consider the proposals put before it by the management and communicate the same to the management, the leaders of the workmen incited them to go on strike at the meeting held the very next day and actually the strike itself commenced from October 17, 1966. No doubt Mr. Sen, learned counsel, pointed out that there was nothing for the management to consider in their meeting the demands of the workmen, because the Cabinet decision was well known. He also urged that the workmen obviously felt that the management was not adopting a reasonable attitude and hence they resorted to a strike which was justified under the circumstances.44. We may also indicate that there is evidence, let in by the management, to show that during the strike period and even prior to that, several of the workmen resorted to violence and other acts of indecency. Evidence has also been let in to show that the workmen continued the strike even after a notification, dated October 31, 1966 was issued by the President of India prohibiting the strike and requiring the workers to report for duty. We do not propose to dwell on these matters, because we have only to consider the justification or otherwise of the strike from October 17, to October 31, 1966.45. The management was prepared to pay at all times the bonus as per the Bonus Act. They had also announced on September 9, 1966 the introduction of the production bonus scheme. They were actively taking part in the conciliation proceedings. The appellant also made to the Union certain proposals on October 15, 1966 at the conference held at Delhi which proposals the representatives of the workmen promised to discuss with the workmen and give a reply to the appellant. But, on October 16, 1966, at a meeting of the workmen, they were incited to go on strike. The receipt of the telegram of October 13, 1966 of the Labour commissioner, fixing October 17, 1966 for further discussions and inviting the Union and the management to attend the meeting, is falsely denied by the Union. The receipt of Sri Vidhyalankars telegram requesting the Union to put off going on strike by one day is admitted by the President of the Union, but that request was not complied with by the workmen. Sri Vidhyalankar, it must be remembered, was representing the workmen in certain conciliation meetings All these circumstances clearly show that the demand of the Union regarding ex gratia bonus cannot be considered to be of an urgent and serious nature. They also show that the launching of the strike was unjustified. It therefore follows that the workmen are not entitled to any wages for the period of the strike viz., from October 17 to October 31, 1966. To this extent the award of the Industrial Tribunal will have to be set aside.
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offer made by the appellant to the workmen to opt for payment of bonus either according to the Cabinet decision or according to the production bonus scheme, it becomes unnecessary for us to investigate the nature of the power that is exercised either by the President or the Central Government when giving directions to the appellant company, under the Articles of Association. For the same reason the question as to whether the circular letter of the Central Government, dated December 21, 1965 is a direction or order, as envisaged by the Articles of Association, does not also arise for consideration.25. The decision of the Central Cabinet dated December 2, 1965 has been announced by the Minister in the Lok Sabha on December 9, 1965 and this decision has been communicated to the appellant by the concerned Ministry by Circular letter dated December 21, 1965. There is not controversy that if the Cabinet decision is given effect to, the claim of the workmen of ex gratia payment of bonus as in previous years will have to be accepted, unless the appellant is able to establish its plea that the production bonus scheme was introduced with the consent and approval of the Central Government in lieu of ex gratia payment of bonus. As to whether the appellant has succeeded in establishing this plea is an aspect which will be adverted to by us at a later stage.Mr. Gokhale attempted to explain away the effect of the draft letter of October 14, 1966 by urging that the Cabinet decision has been communicated only after the Union had submitted its charter of demands as early as August 19, 1966. So long as the Cabinet decision has been communicated and option was given to the workmen, it does not in our opinion matter at what stage the communication was made to the labour. Under the circumstances, it is idle for the management to contend either that the appellant is not bound to comply with the Cabinet decision or that the workmen are not entitled to make any claim on the basis of that decision.29.That leaves us with the alternative contention, raised by the management, that production bonus scheme was introduced with the consent and approval of the Central Government and that on its introduction the ex gratia payment of bonus stood eliminated.No doubt this is the stand that has been taken in the note attached by the appellant in its Circular letter dated September 9, 1966. We have already adverted to that note in the earlier part of our judgment. No materials, whatsoever, have been placed by the appellant in support of this contention.The production bonus scheme itself does not state that it is in lieu of all other ex gratia payments. There is no order of Government on record to show that the Circular letter of December 21, 1965 has been modified by the Government in any manner whatsoever. The only evidence relied on by the appellant in this connection was the statement of R. W. 7, Shri Wadhera.He says that after a consideration of all the relevant factors and in consultation and with the approval of the Central Government, a production bonus scheme was introduced by the appellant with effect from year 1965-66 and that he was himself present at a meeting in the Ministry when a decision was taken that the Corporation might introduce the production bonus scheme and that the workmen should be paid production bonus in addition to the bonus payable under the Bonus Act. He further speaks to the fact that production bonus scheme replaced the ad hoc ex gratia bonus scheme replaced the ad hoc ex gratia bonus made in the past years.Excepting this bare statement in the Central Government to this effect, or modifying its previous decisions, has been placed before the Tribunal, Under those circumstances, the Tribunal was perfectly justified in holding that the appellant has not established that on the introduction of the production bonus scheme, all payments of ex gratia bonus ceased.Once it is held, as we do, in agreement with the Tribunal, that the appellant was bound to implement the Circular of the Central Government, dated December 21, 1965, it follows that the appellant was bound to pay the ex gratia payment of bonus, as claimed by the workmen for the years in question and that the appellant is further not entitled to deduct the advanced wages of a 4 days paid for the year 1965-66.The decision of the Tribunal, on this aspect is correct and is affirmed.Shri Wadehra, in his affidavit dated June 24, 1967 has again stated that the Chief Conciliation Officer invited representatives of the workmen to come to Delhi to discuss the matter with the higher authorities of the appellant Corporation. Shri Wadehra further states that he himself joined the negotiations which took place at Delhi from October 15, 1966 and that the said negotiations were attended by the Managing Director and Chairman on behalf of the appellant and Mr. Vidhyalankar attended the proceedings along with certain other representative of the workmen. Mr. Wadehra further states that on the evening of October 15, 1966 the workmens representatives intimated that they would discuss the outcome of the negotiations at Delhi with the general body of the workmen at Nangal, the next day, and then return to Delhi and report the reaction of the workmen regarding the proposals discussed during the negotiations, But, instead of keeping this promise the representatives of workmen addressed a public meeting on the evening of October 16, 1966 and incited the workmen to strike work from October 17, 1966. The strike was actually commenced from October 17 Mr. Wadehra also stated that a telegram from the Secretary of the Labour Ministry inviting all the parties to attend the conciliation meeting at Chandigarh on October 17, 1966 was received but the labour did not care to attend thatManagement of Chandramalai Estate, Ernakulam v. Its Workmen, 1960-3 SCR 451 = (AIR 1960 SC 902 )
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Mrs. Manorama S. Masurekar Vs. Mrs. Dhanlaxmi G. Shah And Anr | date of the institution of the suit. The appellants husband was a tenant of a flat. The rent was in arrears for a period of more than six months. On December 22, 1956, the landlord served a notice on the tenant demanding the rent. The tenant neglected to pay the rent within one month of the notice. On January11, 1957, he died. On February 4, 1957, the appellant sent the arrears of rent to the landlord by money order, but the landlord refused to accept the payment. On February 5, 1957, the landlord instituted the present suit for eviction of the appellant. The trial Court decreed the suit. The appellant filed a revision application before the Bombay High Court, but this application was dismissed by the High Court.2. It is to be noticed that the rent was in arrears for a period of more than six months. The tenant neglected to make payment of the arrears of rent within one month of the service of the notice by the landlord under sub-s. (2) of S. 12. The rent was payable by the month, and there was no dispute regarding the amount of the rent. The case was, therefore, precisely covered by sub-s : (3) (a) of S. 12. Nevertheless, the appellant submitted that as she was ready and willing to pay the rent before the institution of the suit, she could claim protection under sub-s. (1) of S. 12. She submitted that the decided cases support this contention. In Panchal Mohanlal v. Maheshwari Mills Ltd., 1962-3 Guj LR 574 at pp. 618 to 620, P. N. Bhagwati, J. held that even in a case falling under sub-s. (3) (a), a tenant could by paying or showing his readiness and willngness to pay the arrears of rent before the institution of the suit, claim protection from eviction under sub-s. (1). A similar opinion was expressed by a Division Bench of the Gujarat High Court in Shah Ambalal N. Babaldas, 1962-3 Guj LR 625 at p. 644: (AIR 1964 SC Guj 9 at p. 19). The judgment under appeal dissented from the view expressed by the Gujarat High Court. The Bombay High Court held, and, in our opinion, rightly, that in a case falling under sub-s. (3) (a), the tenant could not claim protection from eviction by showing his readiness and willingness to pay the rent before the institution of the suit.3. Sub-section (1) of S. 12 imposes general restriction on the landlords right to recover possession of the premises so long as the tenant pays or is ready and willing to pay the rent and observes and performs the other conditions of the tenancy. Sub-section (2) of S. 12 imposes the further restriction that no suit for recovery of possession on the ground of non-payment of rent shall be instituted by the landlord until the expiration of one month after a notice in writing demanding the rent. Sub-section (3) (a) provides for the consequences which will follow where the rent is payable by the month, there is no dispute regarding the amount of the rent, the rent is in arrears for a period of six months or more, and the tenant neglects to make payment within one month of the service of the notice under sub-s . (2). In such a case, the tenant cannot claim any protection under sub-s. (1) and the Court is bound to pass a decree for eviction. At the material time. sub-s. (3) (a) of 12 read:"Where the rent is payable by the month and there is no dispute regarding the amount of standard rent or permitted increases, if such rent or increase are in arrears for a period of six months or more and the tenant neglects to make payment thereof until the expiration of the period of one month after notice referred to in sub-s. (2). the Court may pass a decree for eviction in any such suit for recovery of possession."The word "may" in this sub-section has the effect of "shall". In Bhaiya Punjalal Bhagwanddin v. Dave Bhagwatprasad Prabhuprasad 1963-3 SCR 312 : (AIR 1963 SC 120 ), this Court held that where the requirements of sub-s. (3) (a) were satisfied, the Court was bound to pass a decree for eviction. The section has now been suitably amended, and the word "shall" has been substituted for the word "may" by Maharashtra Act No. 14 of 1963.4. If the conditions of sub-s. (3) (a) are satisfied, the tenant cannot claim any protection from eviction under the Act. By tendering the arrears of rent after the expiry of one mouth from the service of the notice under sub-s. (2), he cannot claim the protection under sub-s. (1). It is immaterial whether the tender was made before or after the institution of the suit. In a case falling within sub-s. (3) (a), the tenant must be dealt with under the special provisions of sub-s. (3) (a) and he cannot claim any protection from eviction under the general provisions of sub-s. (1).5. The landlord is vested with the right to recover possession of the premises if the rent is in arrears for a period of six months or more "the tenant neglects to make payment thereof until the expiration of the period of one month after notice referred to in sub-s. (2)", and the other conditions of sub-s. (3) are satisfied. This right cannot be defeated by showing that the tenant was ready and willing to pay the arrears of rent after the default, but before the institution of the suit. In effect, the appellant asks us to rewrite the sections and to substitute in it the following conditions: the tenant neglects to make payment thereof until the date of the institution of the suit. It is not possible to rewrite the section in the manner suggested by the appellant.6. The appellants case fell precisely within sub-s. (3) (a) and she could not obtain immunity from eviction by tendering the rent before the institution of the suit.7 | 0[ds]3. Sub-section (1) of S. 12 imposes general restriction on the landlords right to recover possession of the premises so long as the tenant pays or is ready and willing to pay the rent and observes and performs the other conditions of the tenancy. Sub-section (2) of S. 12 imposes the further restriction that no suit for recovery of possession on the ground of non-payment of rent shall be instituted by the landlord until the expiration of one month after a notice in writing demanding the rent. Sub-section (3) (a) provides for the consequences which will follow where the rent is payable by the month, there is no dispute regarding the amount of the rent, the rent is in arrears for a period of six months or more, and the tenant neglects to make payment within one month of the service of the notice under sub-s . (2). In such a case, the tenant cannot claim any protection under sub-s. (1) and the Court is bound to pass a decree for eviction. At the material time. sub-s. (3) (a) of 12the rent is payable by the month and there is no dispute regarding the amount of standard rent or permitted increases, if such rent or increase are in arrears for a period of six months or more and the tenant neglects to make payment thereof until the expiration of the period of one month after notice referred to in sub-s. (2). the Court may pass a decree for eviction in any such suit for recovery ofword "may" in this sub-section has the effect of "shall". In Bhaiya Punjalal Bhagwanddin v. Dave Bhagwatprasad Prabhuprasad 1963-3 SCR 312 : (AIR 1963 SC 120 ), this Court held that where the requirements of sub-s. (3) (a) were satisfied, the Court was bound to pass a decree for eviction. The section has now been suitably amended, and the word "shall" has been substituted for the word "may" by Maharashtra Act No. 14 of 1963.4. If the conditions of sub-s. (3) (a) are satisfied, the tenant cannot claim any protection from eviction under the Act. By tendering the arrears of rent after the expiry of one mouth from the service of the notice under sub-s. (2), he cannot claim the protection under sub-s. (1). It is immaterial whether the tender was made before or after the institution of the suit. In a case falling within sub-s. (3) (a), the tenant must be dealt with under the special provisions of sub-s. (3) (a) and he cannot claim any protection from eviction under the general provisions of sub-s. (1).5. The landlord is vested with the right to recover possession of the premises if the rent is in arrears for a period of six months or more "the tenant neglects to make payment thereof until the expiration of the period of one month after notice referred to in sub-s. (2)", and the other conditions of sub-s. (3) are satisfied. This right cannot be defeated by showing that the tenant was ready and willing to pay the arrears of rent after the default, but before the institution of the suit. In effect, the appellant asks us to rewrite the sections and to substitute in it the following conditions: the tenant neglects to make payment thereof until the date of the institution of the suit. It is not possible to rewrite the section in the manner suggested by the appellant.6. The appellants case fell precisely within sub-s. (3) (a) and she could not obtain immunity from eviction by tendering the rent before the institution of the suit. | 0 | 1,246 | 701 | ### 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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date of the institution of the suit. The appellants husband was a tenant of a flat. The rent was in arrears for a period of more than six months. On December 22, 1956, the landlord served a notice on the tenant demanding the rent. The tenant neglected to pay the rent within one month of the notice. On January11, 1957, he died. On February 4, 1957, the appellant sent the arrears of rent to the landlord by money order, but the landlord refused to accept the payment. On February 5, 1957, the landlord instituted the present suit for eviction of the appellant. The trial Court decreed the suit. The appellant filed a revision application before the Bombay High Court, but this application was dismissed by the High Court.2. It is to be noticed that the rent was in arrears for a period of more than six months. The tenant neglected to make payment of the arrears of rent within one month of the service of the notice by the landlord under sub-s. (2) of S. 12. The rent was payable by the month, and there was no dispute regarding the amount of the rent. The case was, therefore, precisely covered by sub-s : (3) (a) of S. 12. Nevertheless, the appellant submitted that as she was ready and willing to pay the rent before the institution of the suit, she could claim protection under sub-s. (1) of S. 12. She submitted that the decided cases support this contention. In Panchal Mohanlal v. Maheshwari Mills Ltd., 1962-3 Guj LR 574 at pp. 618 to 620, P. N. Bhagwati, J. held that even in a case falling under sub-s. (3) (a), a tenant could by paying or showing his readiness and willngness to pay the arrears of rent before the institution of the suit, claim protection from eviction under sub-s. (1). A similar opinion was expressed by a Division Bench of the Gujarat High Court in Shah Ambalal N. Babaldas, 1962-3 Guj LR 625 at p. 644: (AIR 1964 SC Guj 9 at p. 19). The judgment under appeal dissented from the view expressed by the Gujarat High Court. The Bombay High Court held, and, in our opinion, rightly, that in a case falling under sub-s. (3) (a), the tenant could not claim protection from eviction by showing his readiness and willingness to pay the rent before the institution of the suit.3. Sub-section (1) of S. 12 imposes general restriction on the landlords right to recover possession of the premises so long as the tenant pays or is ready and willing to pay the rent and observes and performs the other conditions of the tenancy. Sub-section (2) of S. 12 imposes the further restriction that no suit for recovery of possession on the ground of non-payment of rent shall be instituted by the landlord until the expiration of one month after a notice in writing demanding the rent. Sub-section (3) (a) provides for the consequences which will follow where the rent is payable by the month, there is no dispute regarding the amount of the rent, the rent is in arrears for a period of six months or more, and the tenant neglects to make payment within one month of the service of the notice under sub-s . (2). In such a case, the tenant cannot claim any protection under sub-s. (1) and the Court is bound to pass a decree for eviction. At the material time. sub-s. (3) (a) of 12 read:"Where the rent is payable by the month and there is no dispute regarding the amount of standard rent or permitted increases, if such rent or increase are in arrears for a period of six months or more and the tenant neglects to make payment thereof until the expiration of the period of one month after notice referred to in sub-s. (2). the Court may pass a decree for eviction in any such suit for recovery of possession."The word "may" in this sub-section has the effect of "shall". In Bhaiya Punjalal Bhagwanddin v. Dave Bhagwatprasad Prabhuprasad 1963-3 SCR 312 : (AIR 1963 SC 120 ), this Court held that where the requirements of sub-s. (3) (a) were satisfied, the Court was bound to pass a decree for eviction. The section has now been suitably amended, and the word "shall" has been substituted for the word "may" by Maharashtra Act No. 14 of 1963.4. If the conditions of sub-s. (3) (a) are satisfied, the tenant cannot claim any protection from eviction under the Act. By tendering the arrears of rent after the expiry of one mouth from the service of the notice under sub-s. (2), he cannot claim the protection under sub-s. (1). It is immaterial whether the tender was made before or after the institution of the suit. In a case falling within sub-s. (3) (a), the tenant must be dealt with under the special provisions of sub-s. (3) (a) and he cannot claim any protection from eviction under the general provisions of sub-s. (1).5. The landlord is vested with the right to recover possession of the premises if the rent is in arrears for a period of six months or more "the tenant neglects to make payment thereof until the expiration of the period of one month after notice referred to in sub-s. (2)", and the other conditions of sub-s. (3) are satisfied. This right cannot be defeated by showing that the tenant was ready and willing to pay the arrears of rent after the default, but before the institution of the suit. In effect, the appellant asks us to rewrite the sections and to substitute in it the following conditions: the tenant neglects to make payment thereof until the date of the institution of the suit. It is not possible to rewrite the section in the manner suggested by the appellant.6. The appellants case fell precisely within sub-s. (3) (a) and she could not obtain immunity from eviction by tendering the rent before the institution of the suit.7
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3. Sub-section (1) of S. 12 imposes general restriction on the landlords right to recover possession of the premises so long as the tenant pays or is ready and willing to pay the rent and observes and performs the other conditions of the tenancy. Sub-section (2) of S. 12 imposes the further restriction that no suit for recovery of possession on the ground of non-payment of rent shall be instituted by the landlord until the expiration of one month after a notice in writing demanding the rent. Sub-section (3) (a) provides for the consequences which will follow where the rent is payable by the month, there is no dispute regarding the amount of the rent, the rent is in arrears for a period of six months or more, and the tenant neglects to make payment within one month of the service of the notice under sub-s . (2). In such a case, the tenant cannot claim any protection under sub-s. (1) and the Court is bound to pass a decree for eviction. At the material time. sub-s. (3) (a) of 12the rent is payable by the month and there is no dispute regarding the amount of standard rent or permitted increases, if such rent or increase are in arrears for a period of six months or more and the tenant neglects to make payment thereof until the expiration of the period of one month after notice referred to in sub-s. (2). the Court may pass a decree for eviction in any such suit for recovery ofword "may" in this sub-section has the effect of "shall". In Bhaiya Punjalal Bhagwanddin v. Dave Bhagwatprasad Prabhuprasad 1963-3 SCR 312 : (AIR 1963 SC 120 ), this Court held that where the requirements of sub-s. (3) (a) were satisfied, the Court was bound to pass a decree for eviction. The section has now been suitably amended, and the word "shall" has been substituted for the word "may" by Maharashtra Act No. 14 of 1963.4. If the conditions of sub-s. (3) (a) are satisfied, the tenant cannot claim any protection from eviction under the Act. By tendering the arrears of rent after the expiry of one mouth from the service of the notice under sub-s. (2), he cannot claim the protection under sub-s. (1). It is immaterial whether the tender was made before or after the institution of the suit. In a case falling within sub-s. (3) (a), the tenant must be dealt with under the special provisions of sub-s. (3) (a) and he cannot claim any protection from eviction under the general provisions of sub-s. (1).5. The landlord is vested with the right to recover possession of the premises if the rent is in arrears for a period of six months or more "the tenant neglects to make payment thereof until the expiration of the period of one month after notice referred to in sub-s. (2)", and the other conditions of sub-s. (3) are satisfied. This right cannot be defeated by showing that the tenant was ready and willing to pay the arrears of rent after the default, but before the institution of the suit. In effect, the appellant asks us to rewrite the sections and to substitute in it the following conditions: the tenant neglects to make payment thereof until the date of the institution of the suit. It is not possible to rewrite the section in the manner suggested by the appellant.6. The appellants case fell precisely within sub-s. (3) (a) and she could not obtain immunity from eviction by tendering the rent before the institution of the suit.
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STATE OF UTTARAKHAND Vs. RAJ KUMAR | State filed review application before the High Court. The review was dismissed vide order dated 27.06.2016 which has now given rise to two special leave to appeals by State questioning the legality and correctness of the main order dated 24.11.2015 and review order dated 27.06.2016 by way of special leave before this Court. 4. It is the case of the respondent (worker) that he worked as Beldar in the State PWD Department (Haridwar) as a daily wager for about a year from June 1986 to May 1987 and thereafter his services were brought to an end by the State without following the due procedure prescribed in law. 5. After almost 25 years of his alleged termination, the respondent filed a petition in the Labour Court,Haridwar (45/2014) questioning the legality and correctness of his termination. 6. By award 25.02.2015, the Labour Court awarded monetary compensation of Rs.30,000/-in full and final satisfaction to the respondent (workman) against his claim of reinstatement and all consequential benefits arising therefrom. 7. The respondent, therefore, felt aggrieved and filed writ petition in the High Court of Uttarakhand at Nainital. By impugned order, the High Court modified the award of the Labour Court and instead directed reinstatement of the respondent in the State services but without payment of any back wages to him which has given rise to filing of the present appeals by way of special leave by the State before this Court. 8. Heard Mr. Vishwa Pal Singh, learned counsel for the appellants and Mr. Pankaj Miglani, learned counsel for the respondent. 9. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeals in part and modify the impugned order to the extent indicated infra. 10. In our opinion, the case at hand is covered by the two decisions of this Court rendered in the case ofBharat Sanchar Nigam Limited vs. Bhurumal (2014) 7 SCC 177 andDistrict Development Officer and Anr. vs. Satish Kantilal Amerelia (2018) 12 SCC 298. 11. It is apposite to reproduce what this Court has held in the case of Bharat Sanchar Nigam Limited (supra):"33. It is clear from the reading of the aforesaid judgments that the ordinary principle of grant of reinstatement with full back wages, when the termination is found to be illegal is not applied mechanically in all cases. While that may be a position where services of a regular/permanent workman are terminated illegally and/or mala fide and/or by way of victimisation, unfair labour practice, etc. However, when it comes to the case of termination of a daily-wage worker andwhere thetermination is found illegal because of a procedural defect, namely, in violation of Section 25-F of the Industrial Disputes Act, this Court is consistent in taking the view that in such cases reinstatement with back wages is not automatic and instead the workman should be given monetary compensation which will meet the ends of justice. Rationale for shifting in this direction is obvious. 34. The reasons for denying the relief of reinstatement in such cases are obvious. It is trite law that when the termination is found to be illegal because of non-payment of retrenchment compensation and notice pay as mandatorily required under Section 25-F of the Industrial Disputes Act, even after reinstatement, it is always open to the management to terminate the services of that employee by paying him the retrenchment compensation. Since such a workman was working on daily-wage basis and even after he is reinstated, he has no right to seek regularisation [see State of Karnataka v. Umadevi (3)17]. Thus when he cannotclaim regularisation and hehasno right to continue even as a daily-wage worker, no useful purpose is going to be served in reinstating such a workman and he can be given monetary compensation by the Court itself inasmuch as if he is terminated again after reinstatement, he would receive monetary compensation only in the form of retrenchment compensation and notice pay. In such a situation, giving the relief of reinstatement, that too after a long gap, would not serve any purpose. ?35. We would, however, like to add a caveat here. There may be cases where termination of a daily-wage worker is found to be illegal on the ground that it was resorted to as unfair labour practice or in violation of the principle of last come first go viz. while retrenching such a worker daily wage juniors to him were retained. There may also be a situation that persons junior to him were regularised under some policy but the workman concerned terminated. In such circumstances, the terminated worker should not be denied reinstatement unless there are some other weighty reasons for adopting the course of grant of compensation instead of reinstatement. In such cases, reinstatement should be the rule and only in exceptional cases for the reasons stated to be in writing, such a relief can be denied.?12. Here is also a case where the respondent claimed to have worked as daily wager hardly for a period of one year or so in PWD of the State; Secondly, he had no right to claim regularization; Thirdly, he had no right to continue as daily wager and lastly, the dispute was raised by the respondent (workman) almost after 25 years of the alleged termination before the Labour Court. 13. It is for these reasons, we are of the view that the case of the respondent would squarely fall in the category of cases discussed by this Court in Para 34 of the judgment rendered inBharat Sanchar Nigam Ltd. (supra). 14. In view of the forgoing discussion, we are of the considered view that it would be just, proper and reasonable to award lump sum monetary compensation to the respondent in full and final satisfaction of his claim of re-instatement and other consequential benefits by taking recourse to the powers under Section 11-A of the Act and the law laid down by this Court in Bharat Sanchar Nigam Limited?s case (supra). | 1[ds]10. In our opinion, the case at hand is covered by the two decisions of this Court rendered in the case ofBharat Sanchar Nigam Limited vs. Bhurumal (2014) 7 SCC 177 andDistrict Development Officer and Anr. vs. Satish Kantilal Amerelia (2018) 12 SCC 298. Here is also a case where the respondent claimed to have worked as daily wager hardly for a period of one year or so in PWD of the State; Secondly, he had no right to claim regularization; Thirdly, he had no right to continue as daily wager and lastly, the dispute was raised by the respondent (workman) almost after 25 years of the alleged termination before the Labour Court.It is for these reasons, we are of the view that the case of the respondent would squarely fall in the category of cases discussed by this Court in Para 34 of the judgment rendered inBharat Sanchar Nigam Ltd. (supra).In view of the forgoing discussion, we are of the considered view that it would be just, proper and reasonable to award lump sum monetary compensation to the respondent in full and final satisfaction of his claim of re-instatement and other consequential benefits by taking recourse to the powers under Section 11-A of the Act and the law laid down by this Court in Bharat Sanchar Nigam Limited?s case (supra). | 1 | 1,279 | 251 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
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State filed review application before the High Court. The review was dismissed vide order dated 27.06.2016 which has now given rise to two special leave to appeals by State questioning the legality and correctness of the main order dated 24.11.2015 and review order dated 27.06.2016 by way of special leave before this Court. 4. It is the case of the respondent (worker) that he worked as Beldar in the State PWD Department (Haridwar) as a daily wager for about a year from June 1986 to May 1987 and thereafter his services were brought to an end by the State without following the due procedure prescribed in law. 5. After almost 25 years of his alleged termination, the respondent filed a petition in the Labour Court,Haridwar (45/2014) questioning the legality and correctness of his termination. 6. By award 25.02.2015, the Labour Court awarded monetary compensation of Rs.30,000/-in full and final satisfaction to the respondent (workman) against his claim of reinstatement and all consequential benefits arising therefrom. 7. The respondent, therefore, felt aggrieved and filed writ petition in the High Court of Uttarakhand at Nainital. By impugned order, the High Court modified the award of the Labour Court and instead directed reinstatement of the respondent in the State services but without payment of any back wages to him which has given rise to filing of the present appeals by way of special leave by the State before this Court. 8. Heard Mr. Vishwa Pal Singh, learned counsel for the appellants and Mr. Pankaj Miglani, learned counsel for the respondent. 9. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeals in part and modify the impugned order to the extent indicated infra. 10. In our opinion, the case at hand is covered by the two decisions of this Court rendered in the case ofBharat Sanchar Nigam Limited vs. Bhurumal (2014) 7 SCC 177 andDistrict Development Officer and Anr. vs. Satish Kantilal Amerelia (2018) 12 SCC 298. 11. It is apposite to reproduce what this Court has held in the case of Bharat Sanchar Nigam Limited (supra):"33. It is clear from the reading of the aforesaid judgments that the ordinary principle of grant of reinstatement with full back wages, when the termination is found to be illegal is not applied mechanically in all cases. While that may be a position where services of a regular/permanent workman are terminated illegally and/or mala fide and/or by way of victimisation, unfair labour practice, etc. However, when it comes to the case of termination of a daily-wage worker andwhere thetermination is found illegal because of a procedural defect, namely, in violation of Section 25-F of the Industrial Disputes Act, this Court is consistent in taking the view that in such cases reinstatement with back wages is not automatic and instead the workman should be given monetary compensation which will meet the ends of justice. Rationale for shifting in this direction is obvious. 34. The reasons for denying the relief of reinstatement in such cases are obvious. It is trite law that when the termination is found to be illegal because of non-payment of retrenchment compensation and notice pay as mandatorily required under Section 25-F of the Industrial Disputes Act, even after reinstatement, it is always open to the management to terminate the services of that employee by paying him the retrenchment compensation. Since such a workman was working on daily-wage basis and even after he is reinstated, he has no right to seek regularisation [see State of Karnataka v. Umadevi (3)17]. Thus when he cannotclaim regularisation and hehasno right to continue even as a daily-wage worker, no useful purpose is going to be served in reinstating such a workman and he can be given monetary compensation by the Court itself inasmuch as if he is terminated again after reinstatement, he would receive monetary compensation only in the form of retrenchment compensation and notice pay. In such a situation, giving the relief of reinstatement, that too after a long gap, would not serve any purpose. ?35. We would, however, like to add a caveat here. There may be cases where termination of a daily-wage worker is found to be illegal on the ground that it was resorted to as unfair labour practice or in violation of the principle of last come first go viz. while retrenching such a worker daily wage juniors to him were retained. There may also be a situation that persons junior to him were regularised under some policy but the workman concerned terminated. In such circumstances, the terminated worker should not be denied reinstatement unless there are some other weighty reasons for adopting the course of grant of compensation instead of reinstatement. In such cases, reinstatement should be the rule and only in exceptional cases for the reasons stated to be in writing, such a relief can be denied.?12. Here is also a case where the respondent claimed to have worked as daily wager hardly for a period of one year or so in PWD of the State; Secondly, he had no right to claim regularization; Thirdly, he had no right to continue as daily wager and lastly, the dispute was raised by the respondent (workman) almost after 25 years of the alleged termination before the Labour Court. 13. It is for these reasons, we are of the view that the case of the respondent would squarely fall in the category of cases discussed by this Court in Para 34 of the judgment rendered inBharat Sanchar Nigam Ltd. (supra). 14. In view of the forgoing discussion, we are of the considered view that it would be just, proper and reasonable to award lump sum monetary compensation to the respondent in full and final satisfaction of his claim of re-instatement and other consequential benefits by taking recourse to the powers under Section 11-A of the Act and the law laid down by this Court in Bharat Sanchar Nigam Limited?s case (supra).
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10. In our opinion, the case at hand is covered by the two decisions of this Court rendered in the case ofBharat Sanchar Nigam Limited vs. Bhurumal (2014) 7 SCC 177 andDistrict Development Officer and Anr. vs. Satish Kantilal Amerelia (2018) 12 SCC 298. Here is also a case where the respondent claimed to have worked as daily wager hardly for a period of one year or so in PWD of the State; Secondly, he had no right to claim regularization; Thirdly, he had no right to continue as daily wager and lastly, the dispute was raised by the respondent (workman) almost after 25 years of the alleged termination before the Labour Court.It is for these reasons, we are of the view that the case of the respondent would squarely fall in the category of cases discussed by this Court in Para 34 of the judgment rendered inBharat Sanchar Nigam Ltd. (supra).In view of the forgoing discussion, we are of the considered view that it would be just, proper and reasonable to award lump sum monetary compensation to the respondent in full and final satisfaction of his claim of re-instatement and other consequential benefits by taking recourse to the powers under Section 11-A of the Act and the law laid down by this Court in Bharat Sanchar Nigam Limited?s case (supra).
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Union Of India Vs. Kamlabhai Harjiwandas Parekh & Others | clause stood by itself, and satisfied article 31(2) and the tests formulated in Bela Banerjees case, 1954 SCR 558 = (AIR 1954 SC 170 ) is of no substance. The passage in the judgment of this Court in 1964-6 SCR 936 = (AIR 1965 SC 190 ) (supra) at page 944 where reference was made to the fact that even under the Land Acquisition Act of 1894 notification under Section 4 might be followed by a long interval before acquisition under Section 16 took place does not support the contention of the appellant. There this Court observed that the fixing of an anterior date for arriving at the market value of the land did not ipso facto invalidate the acquisition, but that there might be circumstances which would justify such a fixation; and it was there pointed out that it was for the State to show that fixation of compensation at the market value of an anterior date did not amount to violation of the constitutional guarantee. This in our opinion, the appellant has signally failed to do. 22. This case cannot be compared with the case of West Ramnad Electric Distribution Co. v. State of Madras, 1963-2 SCR 747 = (AIR 1962 SC 1753 ) where the person to be compensated was given the right to choose among several methods of valuation prescribed by Section 5 of the Madras Electricity Supply Undertakings (Acquisition) Act of 1954. In that case also, the validity of the Madras Act had to be examined with reference to Article 31 (2) before its amendment in 1955. Section 5 of the Madras Act provided that the compensation payable to a licensee on whom an order had been served under Section 4 or whose undertaking had been taken over before the commencement of the Act, would be determined under any of the Bases A, B and C specified by the Section as might be chosen under Section 8. Then followed detailed provisions about these three Bases. The Court found that "in none of the three bases does the Legislature refer to the market value of the undertaking." But according to the Court:"that itself cannot justify the argument that what is intended to be paid by way of compensation must necessarily mean much less than the market value. The failure of the legislature to refer to the fair market value cannot in our opinion, be regarded as conclusive or even presumptive evidence of the fact that what is intended to be paid under Section 5 does not amount to a just equivalent of the undertaking taken over. After all, in considering the question as to whether compensation payable under one or the other of the Bases amounts to just equivalent, we must try to assess what would be payable under the said basis." 23. The argument on behalf of the appellant that the basis did not provide for the payment of just equivalent could not be accepted by this Court because of the fact that the appellant had produced no material on which its plea could be sustained. In this case, however, there is no such difficulty.Clause (a) of Section 8 (3) lays down a principle aimed at giving the owner of the land something which approximates its just equivalent on the date of acquisition. Clause (b) however directs the arbitrator to measure the price arrived at in terms of Clause (a) with twice the amount of money which the requisitioned property would have fetched if it had been sold on the date of requisition and to ignore the excess of the price computed in terms of clause (a) over that in terms of clause (b). 24. The position bears a close similarity with the facts in Bela Banerjees case, 1954 SCR 558 : (AIR 1954 SC 170 ) (supra) where the legislature directed that the excess of the value of the land arrived at in terms of the Land Acquisition Act over the value as on the 31st December, 1946 was to be ignored. The basis provided by Clause (b) has nothing to do with the just equivalent of the land on the date of acquisition nor is there any principle for such a basis. We cannot therefore accept the proposition that the impugned clause satisfies the requirements of Article 31 (2) of the Constitution. 25. The only other contention which remains to be noted is that the High Court should have refused relief on the ground of delay in making the application under Article 226 of the Constitution. This was turned down by the High Court and it was pointed out that although the original acquisition was made on 4th April 1953, so far as compensation was concerned, the arbitrator was appointed on 21st June, 1961. We were informed that the Collector assessed the compensation on July 2, 1962 and the petitioner approached the Court on September 18, 1962. It was held by the High Court that in the case of an infringement of a fundamental right under the Constitution, mere delay would hardly affect the maintainability of the petition. The High Court was not satisfied that there was delay and said :In any case haying regard to the importance of the points raised and, assuming that there was delay, we would certainly condone the delay." 26. In appeal we do not feel disposed to take a different view. If the High Court had any discretion in the matter- and it is not suggested that it had not-the exercise of such discretion ought not to be overruled by us unless we are satisfied that the High Court had "acted on some wrong principle or committed some error of law or ailed to consider matters which demand consideration". This is the principle which the House of Lords in England have always followed as observed by Viscount Simonds in Zacharia v. Republic of Cyprus, 1963 AC 634 at p. 661 and nothing has been shown to us as to why we should adopt a different principle. 27. | 0[ds]7. The Act was passed before the Fourth Amendment Act of the Constitution in 1955. Its vires is to be decided on the anvil of the Constitution as it stood before the said amendment. Several decisions of this Court have laid down the principles for testing the vires of State Acts providing for compensation for acquisition of land for public purposes17. Inassessing the just equivalent of the value of the property at twice the price which the requisitioned property would have fetched in the open market if it had been sold on the date of requisition, the arbitrator would be acting arbitrarily inasmuch as he would be proceeding on a formula for which there is no rational basisThis case cannot be compared with the case of West Ramnad Electric Distribution Co. v. State of Madras, 1963-2 SCR 747 = (AIR 1962 SC 1753 ) where the person to be compensated was given the right to choose among several methods of valuation prescribed by Section 5 of the Madras Electricity Supply Undertakings (Acquisition) Act of 1954. In that case also, the validity of the Madras Act had to be examined with reference to Article 31 (2) before its amendment in 1955. Section 5 of the Madras Act provided that the compensation payable to a licensee on whom an order had been served under Section 4 or whose undertaking had been taken over before the commencement of the Act, would be determined under any of the Bases A, B and C specified by the Section as might be chosen under Section 8The argument on behalf of the appellant that the basis did not provide for the payment of just equivalent could not be accepted by this Court because of the fact that the appellant had produced no material on which its plea could be sustained. In this case, however, there is no such difficulty.Clause (a) of Section 8 (3) lays down a principle aimed at giving the owner of the land something which approximates its just equivalent on the date of acquisition. Clause (b) however directs the arbitrator to measure the price arrived at in terms of Clause (a) with twice the amount of money which the requisitioned property would have fetched if it had been sold on the date of requisition and to ignore the excess of the price computed in terms of clause (a) over that in terms of clause (b).The position bears a close similarity with the facts in Bela Banerjees case, 1954 SCR 558 : (AIR 1954 SC 170 ) (supra) where the legislature directed that the excess of the value of the land arrived at in terms of the Land Acquisition Act over the value as on the 31st December, 1946 was to be ignored. The basis provided by Clause (b) has nothing to do with the just equivalent of the land on the date of acquisition nor is there any principle for such a basis. We cannot therefore accept the proposition that the impugned clause satisfies the requirements of Article 31 (2) of the ConstitutionThe only other contention which remains to be noted is that the High Court should have refused relief on the ground of delay in making the application under Article 226 of the Constitution. This was turned down by the High Court and it was pointed out that although the original acquisition was made on 4th April 1953, so far as compensation was concerned, the arbitrator was appointed on 21st June, 1961. We were informed that the Collector assessed the compensation on July 2, 1962 and the petitioner approached the Court on September 18, 1962. It was held by the High Court that in the case of an infringement of a fundamental right under the Constitution, mere delay would hardly affect the maintainability of the petition. The High Court was not satisfied that there was delay and said :In any case haying regard to the importance of the points raised and, assuming that there was delay, we would certainly condone the delay."In appeal we do not feel disposed to take a different view. If the High Court had any discretion in the matter- and it is not suggested that it had not-the exercise of such discretion ought not to be overruled by us unless we are satisfied that the High Court had "acted on some wrong principle or committed some error of law or ailed to consider matters which demand consideration". This is the principle which the House of Lords in England have always followed as observed by Viscount Simonds inZacharia v. Republic of Cyprus, 1963 AC 634 at p. 661and nothing has been shown to us as to why we should adopt a different principle. | 0 | 6,041 | 855 | ### 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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clause stood by itself, and satisfied article 31(2) and the tests formulated in Bela Banerjees case, 1954 SCR 558 = (AIR 1954 SC 170 ) is of no substance. The passage in the judgment of this Court in 1964-6 SCR 936 = (AIR 1965 SC 190 ) (supra) at page 944 where reference was made to the fact that even under the Land Acquisition Act of 1894 notification under Section 4 might be followed by a long interval before acquisition under Section 16 took place does not support the contention of the appellant. There this Court observed that the fixing of an anterior date for arriving at the market value of the land did not ipso facto invalidate the acquisition, but that there might be circumstances which would justify such a fixation; and it was there pointed out that it was for the State to show that fixation of compensation at the market value of an anterior date did not amount to violation of the constitutional guarantee. This in our opinion, the appellant has signally failed to do. 22. This case cannot be compared with the case of West Ramnad Electric Distribution Co. v. State of Madras, 1963-2 SCR 747 = (AIR 1962 SC 1753 ) where the person to be compensated was given the right to choose among several methods of valuation prescribed by Section 5 of the Madras Electricity Supply Undertakings (Acquisition) Act of 1954. In that case also, the validity of the Madras Act had to be examined with reference to Article 31 (2) before its amendment in 1955. Section 5 of the Madras Act provided that the compensation payable to a licensee on whom an order had been served under Section 4 or whose undertaking had been taken over before the commencement of the Act, would be determined under any of the Bases A, B and C specified by the Section as might be chosen under Section 8. Then followed detailed provisions about these three Bases. The Court found that "in none of the three bases does the Legislature refer to the market value of the undertaking." But according to the Court:"that itself cannot justify the argument that what is intended to be paid by way of compensation must necessarily mean much less than the market value. The failure of the legislature to refer to the fair market value cannot in our opinion, be regarded as conclusive or even presumptive evidence of the fact that what is intended to be paid under Section 5 does not amount to a just equivalent of the undertaking taken over. After all, in considering the question as to whether compensation payable under one or the other of the Bases amounts to just equivalent, we must try to assess what would be payable under the said basis." 23. The argument on behalf of the appellant that the basis did not provide for the payment of just equivalent could not be accepted by this Court because of the fact that the appellant had produced no material on which its plea could be sustained. In this case, however, there is no such difficulty.Clause (a) of Section 8 (3) lays down a principle aimed at giving the owner of the land something which approximates its just equivalent on the date of acquisition. Clause (b) however directs the arbitrator to measure the price arrived at in terms of Clause (a) with twice the amount of money which the requisitioned property would have fetched if it had been sold on the date of requisition and to ignore the excess of the price computed in terms of clause (a) over that in terms of clause (b). 24. The position bears a close similarity with the facts in Bela Banerjees case, 1954 SCR 558 : (AIR 1954 SC 170 ) (supra) where the legislature directed that the excess of the value of the land arrived at in terms of the Land Acquisition Act over the value as on the 31st December, 1946 was to be ignored. The basis provided by Clause (b) has nothing to do with the just equivalent of the land on the date of acquisition nor is there any principle for such a basis. We cannot therefore accept the proposition that the impugned clause satisfies the requirements of Article 31 (2) of the Constitution. 25. The only other contention which remains to be noted is that the High Court should have refused relief on the ground of delay in making the application under Article 226 of the Constitution. This was turned down by the High Court and it was pointed out that although the original acquisition was made on 4th April 1953, so far as compensation was concerned, the arbitrator was appointed on 21st June, 1961. We were informed that the Collector assessed the compensation on July 2, 1962 and the petitioner approached the Court on September 18, 1962. It was held by the High Court that in the case of an infringement of a fundamental right under the Constitution, mere delay would hardly affect the maintainability of the petition. The High Court was not satisfied that there was delay and said :In any case haying regard to the importance of the points raised and, assuming that there was delay, we would certainly condone the delay." 26. In appeal we do not feel disposed to take a different view. If the High Court had any discretion in the matter- and it is not suggested that it had not-the exercise of such discretion ought not to be overruled by us unless we are satisfied that the High Court had "acted on some wrong principle or committed some error of law or ailed to consider matters which demand consideration". This is the principle which the House of Lords in England have always followed as observed by Viscount Simonds in Zacharia v. Republic of Cyprus, 1963 AC 634 at p. 661 and nothing has been shown to us as to why we should adopt a different principle. 27.
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0
### Explanation:
7. The Act was passed before the Fourth Amendment Act of the Constitution in 1955. Its vires is to be decided on the anvil of the Constitution as it stood before the said amendment. Several decisions of this Court have laid down the principles for testing the vires of State Acts providing for compensation for acquisition of land for public purposes17. Inassessing the just equivalent of the value of the property at twice the price which the requisitioned property would have fetched in the open market if it had been sold on the date of requisition, the arbitrator would be acting arbitrarily inasmuch as he would be proceeding on a formula for which there is no rational basisThis case cannot be compared with the case of West Ramnad Electric Distribution Co. v. State of Madras, 1963-2 SCR 747 = (AIR 1962 SC 1753 ) where the person to be compensated was given the right to choose among several methods of valuation prescribed by Section 5 of the Madras Electricity Supply Undertakings (Acquisition) Act of 1954. In that case also, the validity of the Madras Act had to be examined with reference to Article 31 (2) before its amendment in 1955. Section 5 of the Madras Act provided that the compensation payable to a licensee on whom an order had been served under Section 4 or whose undertaking had been taken over before the commencement of the Act, would be determined under any of the Bases A, B and C specified by the Section as might be chosen under Section 8The argument on behalf of the appellant that the basis did not provide for the payment of just equivalent could not be accepted by this Court because of the fact that the appellant had produced no material on which its plea could be sustained. In this case, however, there is no such difficulty.Clause (a) of Section 8 (3) lays down a principle aimed at giving the owner of the land something which approximates its just equivalent on the date of acquisition. Clause (b) however directs the arbitrator to measure the price arrived at in terms of Clause (a) with twice the amount of money which the requisitioned property would have fetched if it had been sold on the date of requisition and to ignore the excess of the price computed in terms of clause (a) over that in terms of clause (b).The position bears a close similarity with the facts in Bela Banerjees case, 1954 SCR 558 : (AIR 1954 SC 170 ) (supra) where the legislature directed that the excess of the value of the land arrived at in terms of the Land Acquisition Act over the value as on the 31st December, 1946 was to be ignored. The basis provided by Clause (b) has nothing to do with the just equivalent of the land on the date of acquisition nor is there any principle for such a basis. We cannot therefore accept the proposition that the impugned clause satisfies the requirements of Article 31 (2) of the ConstitutionThe only other contention which remains to be noted is that the High Court should have refused relief on the ground of delay in making the application under Article 226 of the Constitution. This was turned down by the High Court and it was pointed out that although the original acquisition was made on 4th April 1953, so far as compensation was concerned, the arbitrator was appointed on 21st June, 1961. We were informed that the Collector assessed the compensation on July 2, 1962 and the petitioner approached the Court on September 18, 1962. It was held by the High Court that in the case of an infringement of a fundamental right under the Constitution, mere delay would hardly affect the maintainability of the petition. The High Court was not satisfied that there was delay and said :In any case haying regard to the importance of the points raised and, assuming that there was delay, we would certainly condone the delay."In appeal we do not feel disposed to take a different view. If the High Court had any discretion in the matter- and it is not suggested that it had not-the exercise of such discretion ought not to be overruled by us unless we are satisfied that the High Court had "acted on some wrong principle or committed some error of law or ailed to consider matters which demand consideration". This is the principle which the House of Lords in England have always followed as observed by Viscount Simonds inZacharia v. Republic of Cyprus, 1963 AC 634 at p. 661and nothing has been shown to us as to why we should adopt a different principle.
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Commissioner Of Sales Tax, Madhya Pradesh Vs. M/S. Amarnath Ajitkumar Of Bhind, Madhyapradesh | the repealed Act. Section 7 of the Bombay General Clauses Act provides "where this Act or any Bombay Act, or Maharashtra Act, made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not:x x x x(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed.x x x x(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the repealing Act has not been passed". Dealing with the scope of those provisions this is what this Court observed:"Very clearly, the repeal of the Act of 1953 by the Act of 1959 did not affect the rights and liabilities of the assessee to tax under the Act of 1953 or the Act of 1946 in respect of the turnover which became liable to sales tax under the Act of 1946. The effect of Clause (e) of Section 7 of the Bombay General Clauses Act further is that any legal proceeding in respect of levy, imposition or recovery of that tax is to continue and any fresh investigation, legal proceeding or remedy could be instituted as if there had been no repeal by the Act of 1959. Consequently, the repeal of the act of 1953 did not in any way affect the power of the Deputy Commissioner to institute proceedings for revision suo motu against the appellate order of the Assistant Collector which had been passed in exercise of his powers under the Act of 1946. It is true, as urged by Mr. Desai in the alternative, that, in fact, the proceedings should have been taken not under Section 31 of the Act of 1953, but under Section 22 of the Act of 1946. That is so, because, when the Act of 1946 was repealed by the Act of 1953, similar provisions were made in the Act of 1953 to continue in force the provisions of the Act of 1946 in respect of rights and liabilities which may have accrued or have been incurred under the Act of 1946. Section 48 (2) and Section 49 (1) clearly contained provisions indicating that, in respect of a liability to tax under the Act of 1946, the rights and liabilities of the assessee had to be determined in accordance with the provisions of the Act of 1946 and all legal proceedings or remedies in respect thereof had also to be taken under the same Act. Consequently the Deputy Commissioner in seeking to exercise revisional powers against the order of the Assistant Collector passed under the Act of 1946, had to proceed under Section 22 of the Act of 1946. That, however is not at all material, because the provisions of Section 22 of the Act of 1946 are quite similar to those of Section 31 of the Act of 1953. The mere incorrect mention of Section 31 of the act of 1953 in the notice is immaterial. The Deputy Commissioner has the jurisdiction and power to revise the order under the Section 22 of the Act of 1946 and, consequently the proceedings initiated by him are not without jurisdiction."12. Now coming back to Section 52 of the M. P. Sales Tax Act of 1959 , the proviso to Section 52 (1) provides that the repeal of the Madhya Bharat Act shall not affect any right already acquired or accrued thereunder. The question is whether the bar on the power of the Commissioner from exercising the powers under Section 12 (1) of the Madhya Bharat Act after the prescribed period did create a right in favour of the assessee? The effect of that provision is that after the time prescribed in that provision, the Commissioner could not revise the order of assessment to the prejudice of the assessee. Similarly he could not revise the order of assessment to the prejudice of the Revenue. Section 12 (1) conferred a right both on the assessee as well as on the Department to see that an order of assessment is not revised to their prejudice after a particular date. We fail to see why Section 12 (1) of the Madhya Bharat Act should not be considered as conferring on the assessee a right to see that the assessment made against him is not altered to his prejudice after a particular date. That is a valuable right. The effect of Section 52 (1) of M. P. Sales Tax Act, as seen earlier is that all assessments, which include reassessments should be in accordance with the repealed Act.13. The second part of the that proviso says that subject to what has been provided in the first part of the proviso, anything done or any action taken including an order in the exercise of any of the powers conferred by or under the repealed Act, shall in so far as it is not inconsistent with the provisions of the M. P. Sales Tax Act, 1959 be deemed to have been done in the exercise of powers conferred by or under that Act as if that Act were in force on the date on which such thing was done. There is undoubtedly a conflict between Section 12 (1) of the Madhya Bharat Act and Section 39(2) of the M. P. Sales Tax Act. 1959. The former provision prohibits the Commissioner from revising an order which has been made more than two years previously and the latter provision permits him to revise the order till the expiry of three years from the date of the order sought to be revised. Therefore the Revenue cannot call into aid the second part of the proviso. The resulting position is that the governing provision would continue to be Section 12 (1) of the Madhya Bharat Act.14. | 0[ds]10. Agreeing with the High Court this Court held in Hanuman Prasads case, 19 STC 87 = (AIR 1967 SC 565 ) that the Commissioner could not have revised the order of assessment after the period prescribed in the repealed Act. One of the reasons given in support of that conclusion is that "the rights and liabilities, which had been acquired or incurred under the repealed Act, included the right or liability to be assessed in accordance with the provisions of the repealed Act, in respect of turnover of sales effected during the time when that Act was in force." The expression assessment includesis true, as urged by Mr. Desai in the alternative, that, in fact, the proceedings should have been taken not under Section 31 of the Act of 1953, but under Section 22 of the Act of 1946. That is so, because, when the Act of 1946 was repealed by the Act of 1953, similar provisions were made in the Act of 1953 to continue in force the provisions of the Act of 1946 in respect of rights and liabilities which may have accrued or have been incurred under the Act of 1946. Section 48 (2) and Section 49 (1) clearly contained provisions indicating that, in respect of a liability to tax under the Act of 1946, the rights and liabilities of the assessee had to be determined in accordance with the provisions of the Act of 1946 and all legal proceedings or remedies in respect thereof had also to be taken under the same Act. Consequently the Deputy Commissioner in seeking to exercise revisional powers against the order of the Assistant Collector passed under the Act of 1946, had to proceed under Section 22 of the Act of 1946. That, however is not at all material, because the provisions of Section 22 of the Act of 1946 are quite similar to those of Section 31 of the Act of 1953. The mere incorrect mention of Section 31 of the act of 1953 in the notice is immaterial. The Deputy Commissioner has the jurisdiction and power to revise the order under the Section 22 of the Act of 1946 and, consequently the proceedings initiated by him are not without jurisdiction.Now coming back to Section 52 of the M. P. Sales Tax Act of 1959 , the proviso to Section 52 (1) provides that the repeal of the Madhya Bharat Act shall not affect any right already acquired or accrued thereunder. The question is whether the bar on the power of the Commissioner from exercising the powers under Section 12 (1) of the Madhya Bharat Act after the prescribed period did create a right in favour of the assessee? The effect of that provision is that after the time prescribed in that provision, the Commissioner could not revise the order of assessment to the prejudice of the assessee. Similarly he could not revise the order of assessment to the prejudice of the Revenue. Section 12 (1) conferred a right both on the assessee as well as on the Department to see that an order of assessment is not revised to their prejudice after a particular date. We fail to see why Section 12 (1) of the Madhya Bharat Act should not be considered as conferring on the assessee a right to see that the assessment made against him is not altered to his prejudice after a particular date. That is a valuable right. The effect of Section 52 (1) of M. P. Sales Tax Act, as seen earlier is that all assessments, which include reassessments should be in accordance with the repealed Act.13. The second part of the that proviso says that subject to what has been provided in the first part of the proviso, anything done or any action taken including an order in the exercise of any of the powers conferred by or under the repealed Act, shall in so far as it is not inconsistent with the provisions of the M. P. Sales Tax Act, 1959 be deemed to have been done in the exercise of powers conferred by or under that Act as if that Act were in force on the date on which such thing was done. There is undoubtedly a conflict between Section 12 (1) of the Madhya Bharat Act and Section 39(2) of the M. P. Sales Tax Act. 1959. The former provision prohibits the Commissioner from revising an order which has been made more than two years previously and the latter provision permits him to revise the order till the expiry of three years from the date of the order sought to be revised. Therefore the Revenue cannot call into aid the second part of the proviso. The resulting position is that the governing provision would continue to be Section 12 (1) of the Madhya Bharat Act.From the second proviso, it is clear that the Commissioner is precluded from revising an order which had been made more than two years previously. That proviso did not lay down any rule of limitation. But it took away the power of the Commissioner to revise any assessment after the prescribed period. Thereafter the assessment became final and conclusive as against the Department as well as the assessee, unless it was liable to be changed under some other provision of the Madhya Bharat Act. | 0 | 3,461 | 970 | ### Instruction:
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the repealed Act. Section 7 of the Bombay General Clauses Act provides "where this Act or any Bombay Act, or Maharashtra Act, made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not:x x x x(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed.x x x x(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the repealing Act has not been passed". Dealing with the scope of those provisions this is what this Court observed:"Very clearly, the repeal of the Act of 1953 by the Act of 1959 did not affect the rights and liabilities of the assessee to tax under the Act of 1953 or the Act of 1946 in respect of the turnover which became liable to sales tax under the Act of 1946. The effect of Clause (e) of Section 7 of the Bombay General Clauses Act further is that any legal proceeding in respect of levy, imposition or recovery of that tax is to continue and any fresh investigation, legal proceeding or remedy could be instituted as if there had been no repeal by the Act of 1959. Consequently, the repeal of the act of 1953 did not in any way affect the power of the Deputy Commissioner to institute proceedings for revision suo motu against the appellate order of the Assistant Collector which had been passed in exercise of his powers under the Act of 1946. It is true, as urged by Mr. Desai in the alternative, that, in fact, the proceedings should have been taken not under Section 31 of the Act of 1953, but under Section 22 of the Act of 1946. That is so, because, when the Act of 1946 was repealed by the Act of 1953, similar provisions were made in the Act of 1953 to continue in force the provisions of the Act of 1946 in respect of rights and liabilities which may have accrued or have been incurred under the Act of 1946. Section 48 (2) and Section 49 (1) clearly contained provisions indicating that, in respect of a liability to tax under the Act of 1946, the rights and liabilities of the assessee had to be determined in accordance with the provisions of the Act of 1946 and all legal proceedings or remedies in respect thereof had also to be taken under the same Act. Consequently the Deputy Commissioner in seeking to exercise revisional powers against the order of the Assistant Collector passed under the Act of 1946, had to proceed under Section 22 of the Act of 1946. That, however is not at all material, because the provisions of Section 22 of the Act of 1946 are quite similar to those of Section 31 of the Act of 1953. The mere incorrect mention of Section 31 of the act of 1953 in the notice is immaterial. The Deputy Commissioner has the jurisdiction and power to revise the order under the Section 22 of the Act of 1946 and, consequently the proceedings initiated by him are not without jurisdiction."12. Now coming back to Section 52 of the M. P. Sales Tax Act of 1959 , the proviso to Section 52 (1) provides that the repeal of the Madhya Bharat Act shall not affect any right already acquired or accrued thereunder. The question is whether the bar on the power of the Commissioner from exercising the powers under Section 12 (1) of the Madhya Bharat Act after the prescribed period did create a right in favour of the assessee? The effect of that provision is that after the time prescribed in that provision, the Commissioner could not revise the order of assessment to the prejudice of the assessee. Similarly he could not revise the order of assessment to the prejudice of the Revenue. Section 12 (1) conferred a right both on the assessee as well as on the Department to see that an order of assessment is not revised to their prejudice after a particular date. We fail to see why Section 12 (1) of the Madhya Bharat Act should not be considered as conferring on the assessee a right to see that the assessment made against him is not altered to his prejudice after a particular date. That is a valuable right. The effect of Section 52 (1) of M. P. Sales Tax Act, as seen earlier is that all assessments, which include reassessments should be in accordance with the repealed Act.13. The second part of the that proviso says that subject to what has been provided in the first part of the proviso, anything done or any action taken including an order in the exercise of any of the powers conferred by or under the repealed Act, shall in so far as it is not inconsistent with the provisions of the M. P. Sales Tax Act, 1959 be deemed to have been done in the exercise of powers conferred by or under that Act as if that Act were in force on the date on which such thing was done. There is undoubtedly a conflict between Section 12 (1) of the Madhya Bharat Act and Section 39(2) of the M. P. Sales Tax Act. 1959. The former provision prohibits the Commissioner from revising an order which has been made more than two years previously and the latter provision permits him to revise the order till the expiry of three years from the date of the order sought to be revised. Therefore the Revenue cannot call into aid the second part of the proviso. The resulting position is that the governing provision would continue to be Section 12 (1) of the Madhya Bharat Act.14.
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10. Agreeing with the High Court this Court held in Hanuman Prasads case, 19 STC 87 = (AIR 1967 SC 565 ) that the Commissioner could not have revised the order of assessment after the period prescribed in the repealed Act. One of the reasons given in support of that conclusion is that "the rights and liabilities, which had been acquired or incurred under the repealed Act, included the right or liability to be assessed in accordance with the provisions of the repealed Act, in respect of turnover of sales effected during the time when that Act was in force." The expression assessment includesis true, as urged by Mr. Desai in the alternative, that, in fact, the proceedings should have been taken not under Section 31 of the Act of 1953, but under Section 22 of the Act of 1946. That is so, because, when the Act of 1946 was repealed by the Act of 1953, similar provisions were made in the Act of 1953 to continue in force the provisions of the Act of 1946 in respect of rights and liabilities which may have accrued or have been incurred under the Act of 1946. Section 48 (2) and Section 49 (1) clearly contained provisions indicating that, in respect of a liability to tax under the Act of 1946, the rights and liabilities of the assessee had to be determined in accordance with the provisions of the Act of 1946 and all legal proceedings or remedies in respect thereof had also to be taken under the same Act. Consequently the Deputy Commissioner in seeking to exercise revisional powers against the order of the Assistant Collector passed under the Act of 1946, had to proceed under Section 22 of the Act of 1946. That, however is not at all material, because the provisions of Section 22 of the Act of 1946 are quite similar to those of Section 31 of the Act of 1953. The mere incorrect mention of Section 31 of the act of 1953 in the notice is immaterial. The Deputy Commissioner has the jurisdiction and power to revise the order under the Section 22 of the Act of 1946 and, consequently the proceedings initiated by him are not without jurisdiction.Now coming back to Section 52 of the M. P. Sales Tax Act of 1959 , the proviso to Section 52 (1) provides that the repeal of the Madhya Bharat Act shall not affect any right already acquired or accrued thereunder. The question is whether the bar on the power of the Commissioner from exercising the powers under Section 12 (1) of the Madhya Bharat Act after the prescribed period did create a right in favour of the assessee? The effect of that provision is that after the time prescribed in that provision, the Commissioner could not revise the order of assessment to the prejudice of the assessee. Similarly he could not revise the order of assessment to the prejudice of the Revenue. Section 12 (1) conferred a right both on the assessee as well as on the Department to see that an order of assessment is not revised to their prejudice after a particular date. We fail to see why Section 12 (1) of the Madhya Bharat Act should not be considered as conferring on the assessee a right to see that the assessment made against him is not altered to his prejudice after a particular date. That is a valuable right. The effect of Section 52 (1) of M. P. Sales Tax Act, as seen earlier is that all assessments, which include reassessments should be in accordance with the repealed Act.13. The second part of the that proviso says that subject to what has been provided in the first part of the proviso, anything done or any action taken including an order in the exercise of any of the powers conferred by or under the repealed Act, shall in so far as it is not inconsistent with the provisions of the M. P. Sales Tax Act, 1959 be deemed to have been done in the exercise of powers conferred by or under that Act as if that Act were in force on the date on which such thing was done. There is undoubtedly a conflict between Section 12 (1) of the Madhya Bharat Act and Section 39(2) of the M. P. Sales Tax Act. 1959. The former provision prohibits the Commissioner from revising an order which has been made more than two years previously and the latter provision permits him to revise the order till the expiry of three years from the date of the order sought to be revised. Therefore the Revenue cannot call into aid the second part of the proviso. The resulting position is that the governing provision would continue to be Section 12 (1) of the Madhya Bharat Act.From the second proviso, it is clear that the Commissioner is precluded from revising an order which had been made more than two years previously. That proviso did not lay down any rule of limitation. But it took away the power of the Commissioner to revise any assessment after the prescribed period. Thereafter the assessment became final and conclusive as against the Department as well as the assessee, unless it was liable to be changed under some other provision of the Madhya Bharat Act.
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Gurcharan Singh and Others Vs. V. K. Kaushal | would be deemed to have come into force on 26th January, 1950. The words "on the date of the Notification" were omitted in s. 3(1) of the principal Act, and were deemed always to have been omitted, so that under s. 3 the Central Government must be deemed to have been empowered always to extend to a cantonment any enactment relating to the control of rent and regulation of house accommodation in force in the State even as it stood before the date of the Notification. This amendment was made in order to accord with the further amendment made by inserting sub-section (3) in s. 3 of the principal Act, which provided that where an enactment in force in any State relating to the control of rent and regulations of house accommodation was extended to a cantonment from a date earlier than the date of such extension was made, such enactment, as in force on such earlier date, would apply to such cantonment. Section 3(2) was added in the principal Act, and it provided:"2. The extension of any enactment under sub-s. (1) may be made from such earlier or future date as the Central Government may think fit:Provided that no such extension shall be made from a date earlier than-(a) the commencement of such enactment, or(b) the establishment of the cantonment, or(c) the commencement of this Act, whichever is later."10. Subject to the proviso, the Central Government now enjoyed power to extend an enactment from a date earlier than the date of the notification or from a future date. Subsequently, the Central Government issued Notification No. SRO-55, dated 24th January, 197 4 superseding the earlier Notification No. SRO-7, dated 21st November, 1969 and extending the East Punjab Urban Rent Restriction Act afresh to cantonments in the States of Haryana and Punjab. Section 1(3) of that Act was modified to read that , except for s. 19, it would be deemed to have come into force on 26th January. 1950. The result is that the East Punjab Urban Rent Restriction Act will be deemed to have come into force in the Ambala Cantonment on 26th January, 1950. And if that be so, the sub-letting effected in 1967 must plainly be regarded as having been made after the commencement of that Act.11. Two points are raised on behalf of the appellants against that conclusion. The first is that the power under s. 3 of the Cantonments, (Extension of Rent Control Laws) Act, 1957 having been exercised once, that is to say, by the Notification dated 21st November, 1969, the power of extension stood exhausted and could not be availed of again, and therefore the Notification dated 24th January, 1974 was without statutory sanction and invalid. We are referred to Lachmi Narain etc., etc. v. Union of India &Ors. That was a case where this Court held that a Notification under s. 2 Part States (Laws) Act, 1 950 having been issued in 1951 by the Central Government extending the Bengal Finance (Sales- Tax) Act, 1941 to the State of Delhi, the power given by s. 2 exhausted itself on the extension of the enactment and could not be exercised again to enable the issue of a fresh Notification modifying the terms in which the Bengal Act was extended. The case is clearly distinguishable. The power under which the Notification dated 24th January, 1974 has been issued is a separate and distinct power from t hat under which the Notification dated 21st November, 1969 was made. The power now exercised passed into the Cantonments (Extension of Rent Control Laws) Act, 1957 when it was amended in 1972. In its nature and quality it is not identifiable with the power vested under the unamended Act. A power conferred by statute is distinguished by the character and content of its essential components. If one or more material components characterising the power cannot be identified with th e material components of another, they are two different and distinct powers. Although broadly the power envisaged in s. 3 of the amended Cantonments (Extension of Rent Control Laws) Act, 1957 is a power of extension even as it was under the unamended Act, there is a vital qualitative difference between the two. The power under the unamended Act was a limited power. It could operate prospectively only. There was no choice in the matter. After amendment, the Act provided for a power which could be exercised retrospectively. The power extended to giving retrospective effect to an enactment in force in the State in the form in which that enactment was in force on the date on which the extension was made. It was a power whose re ach and cover extended far beyond what the power under the unamended Act could achieve.We are of the view that in issuing the Notification dated 24th January, 1974 and thereby extending the East Punjab Urban Rent Restriction Act to the Ambala Cantonment retrospectively with effect from 26th January, 1950, the Central Government exercised a power not available to it when it issued the Notification dated 21st November, 1969. The contention that the issue of the Notification o f 24th January, 1974 amounted to a further exercise of power conferred by s. 3 of the Cantonments (Extension of Rent Control Laws) Act, 1957, under which the earlier Notification was issued is without force and must be rejected.12. The second point raised is that in clause (c) of the proviso to s. 3(2) of the Cantonments (Extension of Rent Control Laws) Act, 1957, which speaks of "the commencement of this Act", the words "this Act" refer to the Cantonments (Extension of Rent Control Laws) Amendment Act, 1972, which commenced to operate from 2nd June, 1972. The argument is founded in fallacy. The words "this Act" refer to the principal Act in which sub-section 3(2) is inserted by virtue of the amendment, and that Act, by virtue of s. 2(2) as amended, must be deemed to have come into force on 26th January, 1950.13. | 0[ds]It is sufficient to point out that the Rent Control Authorities and the High Court have concurrently found that the shop was let out to Gurcharan Singh and not to the joint Hindu family, and that Gurcharan Singh sub-let it in 1967 to a partnership firm consisting of his father and brother. The finding is supported by ample evidence on the record. The material shows that the shop was let out to Gurcharan Singh alone, and the business carried on by him was later take n over by a partnership consisting of his father and brothers. He was no longer proprietor of the business, and merely extended his assistance under a power of attorney enabling him to, act for the partnership. The execution of the power of attorney establishes that he was not a partner. It appears that Gurcharan Singh individually carried on some other business, but there is no evidence to show that business was lodged in the shop under consideration. The material before us demonstrates that the shop was occupied exclusively by the partnership firm and that Gurcharan Singh was left with no right to possessionthe evidence plainly shows, the licence was issued to him when he was carrying on the business, and subsequently, al though it continued to stand in his name, it was. used by the partnership firm, and no inquiry was ever made by the licensing authority, when renewing it, to determine whether the original holder of the licence was still carrying on theare of opinion that the finding of the High Court and the Rent Control authorities that Gurcharan Singh had sub-let the shop isit appears that s. 3 ofthe Cantonments (Extension of Rent Control Laws) Act, 1957 empowered the Central Government to extend, by notification, to any cantonment with such restrictions and modifications as it thought fit, any enactment relating to the t control of rent and regulation of house accommodation which was in force on the date of the notification in the State in which the cantonment was situated. In exercise of that power, the Central Government issued Notification No. SRO-7. dated 21st November, 1969 extending the East Punjab Urban Rent Restriction Act, 1949 to cantonments in the States of Haryana &Punjab. Consequently, with effect from 21st November. 1969 the East Punjab Urban Rent Restriction Act became a law operating in the cantonment. Section 13 (2) (ii) (a) of the Act provides for an order of eviction if the Controller is satisfied "that the tenant has, after commencement of this Act, without the written consent of the landlord-(a) transferred his right under the lease or sub-let the entire building or rented land or any portionis clear that the tenant falls within the mischief of this sub-clause only if he has effected the transfer or sub- letting after the commencement of the Act. The Act commenced to operate in the Ambala Cantonment on 21st November, 1969. In regard to that territory, it was not law before that date, but only on and from that date. It is clear that the sub-letting in the present case having been effected in 1967, was not made after the commencement of thewhen s. 13(2)(ii)(a) speaks of a tenant who "has sub-let", it refers to a tenant who has entered into a transaction of sub-letting. And the transaction of sub-letting is referable to a single point of time. It is the moment when the act effecting the sub-letting is completed. That transaction is located a t a fixed point. What happens then is that a flowing stream of rights and obligations issues from the sub letting. Those rights continue as long as the sub-lease subsists. but they have their source in the definitive transaction of sub-letting located in a single fixed point of time. We may add that in the context of s. 13(2)(ii)(a) of the Act. the words "has sub-let" imply that the sub- letting must subsist on the date when the Act comes into force. The reason is apparent from the object of the Act, which is to protect the personal occupation of the tenant. The protection is not extended to a tenant who has abandoned occupation of the premises and has passed possession to another, even though by way of a sub-tenancy.The protection against eviction is not available for permitting a tenant to make a profit out of his tenancy rights by sub-letting the premises. Therefore, the words "has sub-let" unqualified by any reference to the commencement of the Act. refer to a transaction of sub- letting entered into before or after the commencement of the Act, and in the case where sub-letting has been effected before the commencement of the Act the sub-lease must subsist, and the rights under it continue to flow, on the date of the commencement of the Act. In the present case, however, s. 13(2)(ii)(a) of the Act confines its scope to sub-leases effected after the commencement of the Act, that is to say, transactions of sub-letting effected after the date when the Act came into force. For that reason, a sub- letting effected before the commencement of the Act cannot be brought within the mischief of s. 13(2)(ii)(a) even though it continues to subsist on or after the commencement of theour opinion, the respondent cannot avail of s. 13(2)(ii)(a) of the East Punjab Urban Rent Restriction Act on the basis that it was brought into operation in the Ambala Cantonment by the Notification offind, however, that the Cantonment (Extension of Rent Control Laws) Act, 1957 was amended by Act No. XXII of 1972. Upon amendment, s. 1(2) of the principal Act declared that the principal Act would be deemed to have come into force on 26th January, 1950. The words "on the date of the Notification" were omitted in s. 3(1) of the principal Act, and were deemed always to have been omitted, so that under s. 3 the Central Government must be deemed to have been empowered always to extend to a cantonment any enactment relating to the control of rent and regulation of house accommodation in force in the State even as it stood before the date of the Notification. This amendment was made in order to accord with the further amendment made by inserting sub-section (3) in s. 3 of the principal Act, which provided that where an enactment in force in any State relating to the control of rent and regulations of house accommodation was extended to a cantonment from a date earlier than the date of such extension was made, such enactment, as in force on such earlier date, would apply to suchare referred to Lachmi Narain etc., etc. v. Union of India &Ors. That was a case where this Court held that a Notification under s. 2 Part States (Laws) Act, 1 950 having been issued in 1951 by the Central Government extending the Bengal Finance (Sales- Tax) Act, 1941 to the State of Delhi, the power given by s. 2 exhausted itself on the extension of the enactment and could not be exercised again to enable the issue of a fresh Notification modifying the terms in which the Bengal Act was extended. The case is clearly distinguishable. The power under which the Notification dated 24th January, 1974 has been issued is a separate and distinct power from t hat under which the Notification dated 21st November, 1969 was made. The power now exercised passed intothe Cantonments (Extension of Rent Control Laws) Act, 1957 when it was amended in 1972. In its nature and quality it is not identifiable with the power vested under the unamended Act. A power conferred by statute is distinguished by the character and content of its essential components. If one or more material components characterising the power cannot be identified with th e material components of another, they are two different and distinct powers. Although broadly the power envisaged in s. 3 of the amended Cantonments (Extension of Rent Control Laws) Act, 1957 is a power of extension even as it was under the unamended Act, there is a vital qualitative difference between the two. The power under the unamended Act was a limited power. It could operate prospectively only. There was no choice in the matter. After amendment, the Act provided for a power which could be exercised retrospectively. The power extended to giving retrospective effect to an enactment in force in the State in the form in which that enactment was in force on the date on which the extension was made. It was a power whose re ach and cover extended far beyond what the power under the unamended Act could achieve.We are of the view that in issuing the Notification dated 24th January, 1974 and thereby extending the East Punjab Urban Rent Restriction Act to the Ambala Cantonment retrospectively with effect from 26th January, 1950, the Central Government exercised a power not available to it when it issued the Notification dated 21st November, 1969. The contention that the issue of the Notification o f 24th January, 1974 amounted to a further exercise of power conferred by s. 3 ofthe Cantonments (Extension of Rent Control Laws) Act, 1957, under which the earlier Notification was issued is without force and must bewords "this Act" refer to the principal Act in which sub-section 3(2) is inserted by virtue of the amendment, and that Act, by virtue of s. 2(2) as amended, must be deemed to have come into force on 26th January, 1950. | 0 | 2,853 | 1,801 | ### Instruction:
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would be deemed to have come into force on 26th January, 1950. The words "on the date of the Notification" were omitted in s. 3(1) of the principal Act, and were deemed always to have been omitted, so that under s. 3 the Central Government must be deemed to have been empowered always to extend to a cantonment any enactment relating to the control of rent and regulation of house accommodation in force in the State even as it stood before the date of the Notification. This amendment was made in order to accord with the further amendment made by inserting sub-section (3) in s. 3 of the principal Act, which provided that where an enactment in force in any State relating to the control of rent and regulations of house accommodation was extended to a cantonment from a date earlier than the date of such extension was made, such enactment, as in force on such earlier date, would apply to such cantonment. Section 3(2) was added in the principal Act, and it provided:"2. The extension of any enactment under sub-s. (1) may be made from such earlier or future date as the Central Government may think fit:Provided that no such extension shall be made from a date earlier than-(a) the commencement of such enactment, or(b) the establishment of the cantonment, or(c) the commencement of this Act, whichever is later."10. Subject to the proviso, the Central Government now enjoyed power to extend an enactment from a date earlier than the date of the notification or from a future date. Subsequently, the Central Government issued Notification No. SRO-55, dated 24th January, 197 4 superseding the earlier Notification No. SRO-7, dated 21st November, 1969 and extending the East Punjab Urban Rent Restriction Act afresh to cantonments in the States of Haryana and Punjab. Section 1(3) of that Act was modified to read that , except for s. 19, it would be deemed to have come into force on 26th January. 1950. The result is that the East Punjab Urban Rent Restriction Act will be deemed to have come into force in the Ambala Cantonment on 26th January, 1950. And if that be so, the sub-letting effected in 1967 must plainly be regarded as having been made after the commencement of that Act.11. Two points are raised on behalf of the appellants against that conclusion. The first is that the power under s. 3 of the Cantonments, (Extension of Rent Control Laws) Act, 1957 having been exercised once, that is to say, by the Notification dated 21st November, 1969, the power of extension stood exhausted and could not be availed of again, and therefore the Notification dated 24th January, 1974 was without statutory sanction and invalid. We are referred to Lachmi Narain etc., etc. v. Union of India &Ors. That was a case where this Court held that a Notification under s. 2 Part States (Laws) Act, 1 950 having been issued in 1951 by the Central Government extending the Bengal Finance (Sales- Tax) Act, 1941 to the State of Delhi, the power given by s. 2 exhausted itself on the extension of the enactment and could not be exercised again to enable the issue of a fresh Notification modifying the terms in which the Bengal Act was extended. The case is clearly distinguishable. The power under which the Notification dated 24th January, 1974 has been issued is a separate and distinct power from t hat under which the Notification dated 21st November, 1969 was made. The power now exercised passed into the Cantonments (Extension of Rent Control Laws) Act, 1957 when it was amended in 1972. In its nature and quality it is not identifiable with the power vested under the unamended Act. A power conferred by statute is distinguished by the character and content of its essential components. If one or more material components characterising the power cannot be identified with th e material components of another, they are two different and distinct powers. Although broadly the power envisaged in s. 3 of the amended Cantonments (Extension of Rent Control Laws) Act, 1957 is a power of extension even as it was under the unamended Act, there is a vital qualitative difference between the two. The power under the unamended Act was a limited power. It could operate prospectively only. There was no choice in the matter. After amendment, the Act provided for a power which could be exercised retrospectively. The power extended to giving retrospective effect to an enactment in force in the State in the form in which that enactment was in force on the date on which the extension was made. It was a power whose re ach and cover extended far beyond what the power under the unamended Act could achieve.We are of the view that in issuing the Notification dated 24th January, 1974 and thereby extending the East Punjab Urban Rent Restriction Act to the Ambala Cantonment retrospectively with effect from 26th January, 1950, the Central Government exercised a power not available to it when it issued the Notification dated 21st November, 1969. The contention that the issue of the Notification o f 24th January, 1974 amounted to a further exercise of power conferred by s. 3 of the Cantonments (Extension of Rent Control Laws) Act, 1957, under which the earlier Notification was issued is without force and must be rejected.12. The second point raised is that in clause (c) of the proviso to s. 3(2) of the Cantonments (Extension of Rent Control Laws) Act, 1957, which speaks of "the commencement of this Act", the words "this Act" refer to the Cantonments (Extension of Rent Control Laws) Amendment Act, 1972, which commenced to operate from 2nd June, 1972. The argument is founded in fallacy. The words "this Act" refer to the principal Act in which sub-section 3(2) is inserted by virtue of the amendment, and that Act, by virtue of s. 2(2) as amended, must be deemed to have come into force on 26th January, 1950.13.
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a t a fixed point. What happens then is that a flowing stream of rights and obligations issues from the sub letting. Those rights continue as long as the sub-lease subsists. but they have their source in the definitive transaction of sub-letting located in a single fixed point of time. We may add that in the context of s. 13(2)(ii)(a) of the Act. the words "has sub-let" imply that the sub- letting must subsist on the date when the Act comes into force. The reason is apparent from the object of the Act, which is to protect the personal occupation of the tenant. The protection is not extended to a tenant who has abandoned occupation of the premises and has passed possession to another, even though by way of a sub-tenancy.The protection against eviction is not available for permitting a tenant to make a profit out of his tenancy rights by sub-letting the premises. Therefore, the words "has sub-let" unqualified by any reference to the commencement of the Act. refer to a transaction of sub- letting entered into before or after the commencement of the Act, and in the case where sub-letting has been effected before the commencement of the Act the sub-lease must subsist, and the rights under it continue to flow, on the date of the commencement of the Act. In the present case, however, s. 13(2)(ii)(a) of the Act confines its scope to sub-leases effected after the commencement of the Act, that is to say, transactions of sub-letting effected after the date when the Act came into force. For that reason, a sub- letting effected before the commencement of the Act cannot be brought within the mischief of s. 13(2)(ii)(a) even though it continues to subsist on or after the commencement of theour opinion, the respondent cannot avail of s. 13(2)(ii)(a) of the East Punjab Urban Rent Restriction Act on the basis that it was brought into operation in the Ambala Cantonment by the Notification offind, however, that the Cantonment (Extension of Rent Control Laws) Act, 1957 was amended by Act No. XXII of 1972. Upon amendment, s. 1(2) of the principal Act declared that the principal Act would be deemed to have come into force on 26th January, 1950. The words "on the date of the Notification" were omitted in s. 3(1) of the principal Act, and were deemed always to have been omitted, so that under s. 3 the Central Government must be deemed to have been empowered always to extend to a cantonment any enactment relating to the control of rent and regulation of house accommodation in force in the State even as it stood before the date of the Notification. This amendment was made in order to accord with the further amendment made by inserting sub-section (3) in s. 3 of the principal Act, which provided that where an enactment in force in any State relating to the control of rent and regulations of house accommodation was extended to a cantonment from a date earlier than the date of such extension was made, such enactment, as in force on such earlier date, would apply to suchare referred to Lachmi Narain etc., etc. v. Union of India &Ors. That was a case where this Court held that a Notification under s. 2 Part States (Laws) Act, 1 950 having been issued in 1951 by the Central Government extending the Bengal Finance (Sales- Tax) Act, 1941 to the State of Delhi, the power given by s. 2 exhausted itself on the extension of the enactment and could not be exercised again to enable the issue of a fresh Notification modifying the terms in which the Bengal Act was extended. The case is clearly distinguishable. The power under which the Notification dated 24th January, 1974 has been issued is a separate and distinct power from t hat under which the Notification dated 21st November, 1969 was made. The power now exercised passed intothe Cantonments (Extension of Rent Control Laws) Act, 1957 when it was amended in 1972. In its nature and quality it is not identifiable with the power vested under the unamended Act. A power conferred by statute is distinguished by the character and content of its essential components. If one or more material components characterising the power cannot be identified with th e material components of another, they are two different and distinct powers. Although broadly the power envisaged in s. 3 of the amended Cantonments (Extension of Rent Control Laws) Act, 1957 is a power of extension even as it was under the unamended Act, there is a vital qualitative difference between the two. The power under the unamended Act was a limited power. It could operate prospectively only. There was no choice in the matter. After amendment, the Act provided for a power which could be exercised retrospectively. The power extended to giving retrospective effect to an enactment in force in the State in the form in which that enactment was in force on the date on which the extension was made. It was a power whose re ach and cover extended far beyond what the power under the unamended Act could achieve.We are of the view that in issuing the Notification dated 24th January, 1974 and thereby extending the East Punjab Urban Rent Restriction Act to the Ambala Cantonment retrospectively with effect from 26th January, 1950, the Central Government exercised a power not available to it when it issued the Notification dated 21st November, 1969. The contention that the issue of the Notification o f 24th January, 1974 amounted to a further exercise of power conferred by s. 3 ofthe Cantonments (Extension of Rent Control Laws) Act, 1957, under which the earlier Notification was issued is without force and must bewords "this Act" refer to the principal Act in which sub-section 3(2) is inserted by virtue of the amendment, and that Act, by virtue of s. 2(2) as amended, must be deemed to have come into force on 26th January, 1950.
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Vidya Sagar Joshi Vs. Surinder Nath Gautam | of the conduct and management of an election in any one constituency in a State in excess of the maximum amount specified in respect of that constituency in Schedule V."The words "conduct and management of election" are not as wide as the words "all expenditure in connection with election incurred or authorised by him," which now finds place in section 77. The question thus is what meaning must be given to the words used in Section 77.The critical words of Section 77 are expenditure in connection with election and incurred or authorised. Expenditure means the amount expended and expended means to pay away, lay out or spend. It really represents money out of pocket, a going out. Now the amount paid away or paid out need not be all money which a man spends on himself during this time. It is money in connection with his election. These words mean not so much as consequent upon as having to do with. All money laid out and having to do with the election is contemplated. But here again money which is liable to be refunded is not to be taken note of. The word incurred shows a finality. It has the sense of rendering oneself liable for the amount. Therefore the section regards everything for which the candidate has rendered himself liable and of which he is out of pocket in connection with his election that is to say having to do with his election.9. The candidate here put out this money for his election since he was trying to obtain a Congress ticket. If he had got the ticket and the money was refunded to him, this would not have counted as an expenditure since the expense would not have been incurred. When the candidate knowing that the money would be lost went on to stand as an independent candidate, he was willing to let the money go and take a chance independently.The case of the appellant is that this money was not used in furthering the prospect of his election. On the other hand, it was in fact used against him by the Congress Party as he was opposed to that partys candidate. He contends that such an expense cannot be regarded as expense in connection with the election. According to him the connection must be a connection of utility and not something which is of no use but rather against the chances of victory. In this connection the learned counsel draws our attention to Halsburys Laws of England Third Edition Volume 14, at page 177 paragraph 314. It is stated there as follows:"While no attempt has been made by judges to define exhaustively the meaning of expenses incurred in the conduct or management of an election, it has been said that if expenses are, primarily or principally, expenses incurred for the promotion of the interests of the candidate, they are election expenses."10. It will be seen that the above passage refers to expenses incurred in the conduct or management of an election.11. The learned counsel for the appellant and respondent relied upon two decisions of this Court. Reliance was also placed upon two decisions of the Election Tribunal. The decisions of the Election Tribunal are of the same Bench and concern Rule 117. They need not be considered. The two cases of this Court may be noticed.12. In Haji Aziz and Abdul Shakoor Bros. v. Commissioner of Income Tax, Bombay City, (1961) 2 SCR 651 = (AIR 1961 SC 663 ) the question arose under the Indian Income-tax Act. A firm importing dates was found to have breached some law and a penalty was imposed on it under the Sea Customs Act. The firm sought to treat the penalty as expenses and they were disallowed by this Court. Learned Counsel for the appellant relied on this case and claimed that the same principle applies and this penalty cannot be said to be an expenditure in connection with the election. The analogy is not apt because not only the prescriptions of the two laws are different but the underlying principle is different also. In Income-tax laws the expenditure must be laid out wholly or exclusively for the purpose of the business etc. Breaking laws and incurring penalty is not carrying on business and therefore, the loss is not for the purposes of business.Here the expenditure is to be included if it is incurred in connection with the election and the payment to secure the seat is an expenditure in connection with the election. The ruling, therefore, does not apply.13. In the second case a Congress candidate had paid a sum of Rs. 500 of which Rs. 100 were subscription for membership and Rs. 400 were a deposit. Later he paid Rs. 500 as donation to the Congress. He failed to include the two sums of Rs. 500 each in his return of expenses. The Tribunal found that both the sums were spent in connection with the election and by including them the limit was exceeded. This Court affirmed the decision of the Tribunal. The case was decided under R. 117. The two sums were considered separately. The contention was that under S. 123 (7) and R. l17 the candidate was nominated only on November 16, 1951 and the first sum was paid on September 12, 1951. The question then arose when the candidate became a candidate for the application of the Rule and S. 123 (7). It was held that the candidate became a candidate when he unequivocally expressed his intention by making the payment.14. The question of commencement of the candidature is now obviated by prescribing the two terminii between which the expense it to be counted. In so far as the case goes it supports our view. It is risky to quote the decision because the terms of the law on which it was declared were entirely different. We can only say that there is nothing in it which militates against the view taken by us here. | 1[ds]9. The candidate here put out this money for his election since he was trying to obtain a Congress ticket. If he had got the ticket and the money was refunded to him, this would not have counted as an expenditure since the expense would not have been incurred. When the candidate knowing that the money would be lost went on to stand as an independent candidate, he was willing to let the money go and take a chance independently.The case of the appellant is that this money was not used in furthering the prospect of his election. On the other hand, it was in fact used against him by the Congress Party as he was opposed to that partys candidate. He contends that such an expense cannot be regarded as expense in connection with the election. According to him the connection must be a connection of utility and not something which is of no use but rather against the chances ofCounsel for the appellant relied on this case and claimed that the same principle applies and this penalty cannot be said to be an expenditure in connection with the election. The analogy is not apt because not only the prescriptions of the two laws are different but the underlying principle is different also. In Income-tax laws the expenditure must be laid out wholly or exclusively for the purpose of the business etc. Breaking laws and incurring penalty is not carrying on business and therefore, the loss is not for the purposes of business.Here the expenditure is to be included if it is incurred in connection with the election and the payment to secure the seat is an expenditure in connection with the election. The ruling, therefore, does not apply.13. In the second case a Congress candidate had paid a sum of Rs. 500 of which Rs. 100 were subscription for membership and Rs. 400 were a deposit. Later he paid Rs. 500 as donation to the Congress. He failed to include the two sums of Rs. 500 each in his return of expenses. The Tribunal found that both the sums were spent in connection with the election and by including them the limit was exceeded. This Court affirmed the decision of the Tribunal. The case was decided under R. 117. The two sums were considered separately. The contention was that under S. 123 (7) and R. l17 the candidate was nominated only on November 16, 1951 and the first sum was paid on September 12, 1951. The question then arose when the candidate became a candidate for the application of the Rule and S. 123 (7). It was held that the candidate became a candidate when he unequivocally expressed his intention by making the payment.14. The question of commencement of the candidature is now obviated by prescribing the two terminii between which the expense it to be counted. In so far as the case goes it supports our view. It is risky to quote the decision because the terms of the law on which it was declared were entirely different. We can only say that there is nothing in it which militates against the view taken by us here. | 1 | 2,271 | 578 | ### Instruction:
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of the conduct and management of an election in any one constituency in a State in excess of the maximum amount specified in respect of that constituency in Schedule V."The words "conduct and management of election" are not as wide as the words "all expenditure in connection with election incurred or authorised by him," which now finds place in section 77. The question thus is what meaning must be given to the words used in Section 77.The critical words of Section 77 are expenditure in connection with election and incurred or authorised. Expenditure means the amount expended and expended means to pay away, lay out or spend. It really represents money out of pocket, a going out. Now the amount paid away or paid out need not be all money which a man spends on himself during this time. It is money in connection with his election. These words mean not so much as consequent upon as having to do with. All money laid out and having to do with the election is contemplated. But here again money which is liable to be refunded is not to be taken note of. The word incurred shows a finality. It has the sense of rendering oneself liable for the amount. Therefore the section regards everything for which the candidate has rendered himself liable and of which he is out of pocket in connection with his election that is to say having to do with his election.9. The candidate here put out this money for his election since he was trying to obtain a Congress ticket. If he had got the ticket and the money was refunded to him, this would not have counted as an expenditure since the expense would not have been incurred. When the candidate knowing that the money would be lost went on to stand as an independent candidate, he was willing to let the money go and take a chance independently.The case of the appellant is that this money was not used in furthering the prospect of his election. On the other hand, it was in fact used against him by the Congress Party as he was opposed to that partys candidate. He contends that such an expense cannot be regarded as expense in connection with the election. According to him the connection must be a connection of utility and not something which is of no use but rather against the chances of victory. In this connection the learned counsel draws our attention to Halsburys Laws of England Third Edition Volume 14, at page 177 paragraph 314. It is stated there as follows:"While no attempt has been made by judges to define exhaustively the meaning of expenses incurred in the conduct or management of an election, it has been said that if expenses are, primarily or principally, expenses incurred for the promotion of the interests of the candidate, they are election expenses."10. It will be seen that the above passage refers to expenses incurred in the conduct or management of an election.11. The learned counsel for the appellant and respondent relied upon two decisions of this Court. Reliance was also placed upon two decisions of the Election Tribunal. The decisions of the Election Tribunal are of the same Bench and concern Rule 117. They need not be considered. The two cases of this Court may be noticed.12. In Haji Aziz and Abdul Shakoor Bros. v. Commissioner of Income Tax, Bombay City, (1961) 2 SCR 651 = (AIR 1961 SC 663 ) the question arose under the Indian Income-tax Act. A firm importing dates was found to have breached some law and a penalty was imposed on it under the Sea Customs Act. The firm sought to treat the penalty as expenses and they were disallowed by this Court. Learned Counsel for the appellant relied on this case and claimed that the same principle applies and this penalty cannot be said to be an expenditure in connection with the election. The analogy is not apt because not only the prescriptions of the two laws are different but the underlying principle is different also. In Income-tax laws the expenditure must be laid out wholly or exclusively for the purpose of the business etc. Breaking laws and incurring penalty is not carrying on business and therefore, the loss is not for the purposes of business.Here the expenditure is to be included if it is incurred in connection with the election and the payment to secure the seat is an expenditure in connection with the election. The ruling, therefore, does not apply.13. In the second case a Congress candidate had paid a sum of Rs. 500 of which Rs. 100 were subscription for membership and Rs. 400 were a deposit. Later he paid Rs. 500 as donation to the Congress. He failed to include the two sums of Rs. 500 each in his return of expenses. The Tribunal found that both the sums were spent in connection with the election and by including them the limit was exceeded. This Court affirmed the decision of the Tribunal. The case was decided under R. 117. The two sums were considered separately. The contention was that under S. 123 (7) and R. l17 the candidate was nominated only on November 16, 1951 and the first sum was paid on September 12, 1951. The question then arose when the candidate became a candidate for the application of the Rule and S. 123 (7). It was held that the candidate became a candidate when he unequivocally expressed his intention by making the payment.14. The question of commencement of the candidature is now obviated by prescribing the two terminii between which the expense it to be counted. In so far as the case goes it supports our view. It is risky to quote the decision because the terms of the law on which it was declared were entirely different. We can only say that there is nothing in it which militates against the view taken by us here.
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9. The candidate here put out this money for his election since he was trying to obtain a Congress ticket. If he had got the ticket and the money was refunded to him, this would not have counted as an expenditure since the expense would not have been incurred. When the candidate knowing that the money would be lost went on to stand as an independent candidate, he was willing to let the money go and take a chance independently.The case of the appellant is that this money was not used in furthering the prospect of his election. On the other hand, it was in fact used against him by the Congress Party as he was opposed to that partys candidate. He contends that such an expense cannot be regarded as expense in connection with the election. According to him the connection must be a connection of utility and not something which is of no use but rather against the chances ofCounsel for the appellant relied on this case and claimed that the same principle applies and this penalty cannot be said to be an expenditure in connection with the election. The analogy is not apt because not only the prescriptions of the two laws are different but the underlying principle is different also. In Income-tax laws the expenditure must be laid out wholly or exclusively for the purpose of the business etc. Breaking laws and incurring penalty is not carrying on business and therefore, the loss is not for the purposes of business.Here the expenditure is to be included if it is incurred in connection with the election and the payment to secure the seat is an expenditure in connection with the election. The ruling, therefore, does not apply.13. In the second case a Congress candidate had paid a sum of Rs. 500 of which Rs. 100 were subscription for membership and Rs. 400 were a deposit. Later he paid Rs. 500 as donation to the Congress. He failed to include the two sums of Rs. 500 each in his return of expenses. The Tribunal found that both the sums were spent in connection with the election and by including them the limit was exceeded. This Court affirmed the decision of the Tribunal. The case was decided under R. 117. The two sums were considered separately. The contention was that under S. 123 (7) and R. l17 the candidate was nominated only on November 16, 1951 and the first sum was paid on September 12, 1951. The question then arose when the candidate became a candidate for the application of the Rule and S. 123 (7). It was held that the candidate became a candidate when he unequivocally expressed his intention by making the payment.14. The question of commencement of the candidature is now obviated by prescribing the two terminii between which the expense it to be counted. In so far as the case goes it supports our view. It is risky to quote the decision because the terms of the law on which it was declared were entirely different. We can only say that there is nothing in it which militates against the view taken by us here.
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Madan Lal Vs. Sunderlal & Another | of the Limitation Act. If no such application is made the award cannot be set aside on any of the grounds specified in S.30 of the Act. It may be conceded that there is no special form prescribed for making such an application and in an appropriate case an objection of the type made in this case may be treated as such an application, if it is filed within the period of limitation. But if an objection like this has been filed after the period of limitation it cannot be treated an application to set aside the award for if it is so treated it will be barred by limitation.9. It is not in dispute in the present case that the objections raised by the appellant were covered by S. 30 of the Act, and though the appellant did not pray for setting aside the award in his objection that was what he really wanted the Court to do after hearing his objection As in the present case the objection was filed more than 30 days after the notice it could not be treated as an application for setting the award, for it would then be barred by limitation. The position thus is that in the present case there was no application to set aside the award on grounds mentioned in S. 30 within the period of limitation and, therefore, the Court could not set aside the award on those grounds. There can be no doubt on the scheme of the Act that any objection even in the nature of a written-statement which falls under S. 30 cannot be considered by the Court unless such an objection is made within the period of limitation (namely, 30 days), though if such an objection is made within limitation that objection may in appropriate cases be treated as an application for setting aside the award.10. Learned counsel for the appellant, however, urges that S. 17 gives power to the Court to Set aside the award and that such power can be exercised even where an objection in the form of a written-statement has been made more than 30 days after the service of the notice of the filing of the award as the Court can do so suo motu. He relies in this connection on Hastimal Dalichand v. Hiralal Motichand AIR 1954 Bom 243 and Saha and Co. v. Isharsingh Kripalsingh AIR 1956 Cal 321 (FB).11. Assuming that the Court has power to set aside the award suo motu, we are of opinion that, that power cannot be exercised to set aside an award on grounds which fall under S. 30 of the Act, if taken in an objection petition filed more than 30 days after service of notice of filing of the award, for if that were so the limitation provided under Art. 158 of the Limitation Act would be completely negatived. The two cases on which the appellant relies do not in our opinion support him. In Hastimals case, AIR 1954 Bom 243 , it was observed that"if the award directs a party to do an act which is prohibited by law or if it is otherwise patently illegal or void it would be open to the Court to consider this patent defect in the award suo motu, and when the Court acts suo motu no question of limitation prescribed by Art. 158 can arise".These observations only show that the Court can act suo motu in certain circumstances which do not fall within S. 30 of the Act. Saha and Co.s case , AIR 1956 Cal 321 (FB) , was a decision of five Judges by a majority of 3:2 and the majority judgement is against the appellant. The minority judgement certainly takes the view that the non-existence or invalidity of an arbitration agreement and an order of reference to arbitration may be raised after the period of limitation for the purpose of setting aside an award because they are not grounds for setting aside the award under S. 30. It is not necessary in the present case to resolve the conflict between the majority and the minority Judges in Saha and Co.s case, AIR 1956 Cal. 321 (FB), for even the minority judgment shows that it is only where the grounds are not those falling within S. 30, that the award may be set aside on an objection made beyond the period of limitation, even though no application has been made for setting aside the award within the period of limitation. Clearly, therefore, where an objection as in the present case raises grounds which fall squarely within S. 30 of the Act that objection cannot be heard by the Court and cannot be treated as an application for setting, aside the award unless it is made within the period of limitation. Saha and Co.s case, AIR 1956 Cal 321 (FB), therefore, also does not help the appellant.12. Learned counsel for the appellant also relies on Mohan Das v. Kessumal, AIR 1955 Ajmer 47. In that case the objection which was made more than 30 days after the service of notice was that the award had been filed by a person not authorised by the arbitrator to do so . The Court held that such an objection did not fall within S. 30 of the Act, and, therefore, Art. 158 of the Limitation Act did not apply. On these facts the decision in that case may be right. But the Court seems to have made a general observation that Art. 158 cannot apply to a written-statement by a defendant in reply to an application to have the award made a rule of the Court. If by that general observation the Court means that even if the objection is of the nature falling within S. 30 and is filed more than 30 days after service of notice, it would be open to the Court to set aside the award on such objection, we are of the opinion that the view is incorrect.13. | 0[ds]5. We are of opinion that this appeal must fail. The Act was passed in 1940 and as the long title shows it is an Act to consolidate and amend the law relating to arbitration. Before 1940, the 1aw relating to arbitration was mainly contained in the Second Schedule to theCode of Civil Procedure which was repealed by the Act which is now self-contained code in the matter of arbitration. The scheme of the Act is to divide arbitration into three classes. The first consists of arbitration without intervention of a Court and is contained in Chap. II of the Act which has 17 sections from S. 3 to S. 19. The second consists of arbitration with intervention of a Court where there is no suit pending, which is in Chap. III of the Act, and there is only one section (S. 20) therein, as sub-s. (5) thereof applies the other provisions contained in the Act to this type of arbitration also so far as they can be made applicable. The third type of arbitration is contained in Chap. IV, namely arbitration in suits. This chapter contains 5 sections and S. 25 thereof applies the other provisions of the Act so far they can be made applicable.This analysis of the relevant provisions of the Act contained in Chap. II which apply mutatis mutandis to arbitrations of the other two types shows that the Court has to pronounce judgment in accordance with the award if it sees no cause to remit the award or any of the matters referred to arbitration for reconsideration, or if it sees no cause to set aside the award. The Court has to wait for the time given to a party to make an application for setting aside the award and where such an application has been made the Court has to decide it first and if it rejects it the Court proceeds to pronounce judgment according to the award. It is clear, therefore, from S. 17 that an application to set aside the award is contemplated therein and it is only when no such application has been made within the time allowed or if such an application has been filed and has been rejected that the Court proceeds to pronounce judgment in terms of the award.It is clear therefore form from the scheme of the Act that if a party wants an award to be set aside on any of the grounds mentioned in S.30 it must apply within 30 days of the date of service of notice of filing of the award as provided in Art 158 of the Limitation Act. If no such application is made the award cannot be set aside on any of the grounds specified in S.30 of the Act. It may be conceded that there is no special form prescribed for making such an application and in an appropriate case an objection of the type made in this case may be treated as such an application, if it is filed within the period of limitation. But if an objection like this has been filed after the period of limitation it cannot be treated an application to set aside the award for if it is so treated it will be barred by limitation.9. It is not in dispute in the present case that the objections raised by the appellant were covered by S. 30 of the Act, and though the appellant did not pray for setting aside the award in his objection that was what he really wanted the Court to do after hearing his objection As in the present case the objection was filed more than 30 days after the notice it could not be treated as an application for setting the award, for it would then be barred by limitation. The position thus is that in the present case there was no application to set aside the award on grounds mentioned in S. 30 within the period of limitation and, therefore, the Court could not set aside the award on those grounds. There can be no doubt on the scheme of the Act that any objection even in the nature of a written-statement which falls under S. 30 cannot be considered by the Court unless such an objection is made within the period of limitation (namely, 30 days), though if such an objection is made within limitation that objection may in appropriate cases be treated as an application for setting aside thethat the Court has power to set aside the award suo motu, we are of opinion that, that power cannot be exercised to set aside an award on grounds which fall under S. 30 of the Act, if taken in an objection petition filed more than 30 days after service of notice of filing of the award, for if that were so the limitation provided under Art. 158 of the Limitation Act would be completely negatived. The two cases on which the appellant relies do not in our opinion supportis not necessary in the present case to resolve the conflict between the majority and the minority Judges in Saha and Co.s case, AIR 1956 Cal. 321 (FB), for even the minority judgment shows that it is only where the grounds are not those falling within S. 30, that the award may be set aside on an objection made beyond the period of limitation, even though no application has been made for setting aside the award within the period of limitation. Clearly, therefore, where an objection as in the present case raises grounds which fall squarely within S. 30 of the Act that objection cannot be heard by the Court and cannot be treated as an application for setting, aside the award unless it is made within the period of limitation. Saha and Co.s case, AIR 1956 Cal 321 (FB), therefore, also does not help thethese facts the decision in that case may be right. But the Court seems to have made a general observation that Art. 158 cannot apply to a written-statement by a defendant in reply to an application to have the award made a rule of the Court. If by that general observation the Court means that even if the objection is of the nature falling within S. 30 and is filed more than 30 days after service of notice, it would be open to the Court to set aside the award on such objection, we are of the opinion that the view is incorrect. | 0 | 2,827 | 1,161 | ### Instruction:
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of the Limitation Act. If no such application is made the award cannot be set aside on any of the grounds specified in S.30 of the Act. It may be conceded that there is no special form prescribed for making such an application and in an appropriate case an objection of the type made in this case may be treated as such an application, if it is filed within the period of limitation. But if an objection like this has been filed after the period of limitation it cannot be treated an application to set aside the award for if it is so treated it will be barred by limitation.9. It is not in dispute in the present case that the objections raised by the appellant were covered by S. 30 of the Act, and though the appellant did not pray for setting aside the award in his objection that was what he really wanted the Court to do after hearing his objection As in the present case the objection was filed more than 30 days after the notice it could not be treated as an application for setting the award, for it would then be barred by limitation. The position thus is that in the present case there was no application to set aside the award on grounds mentioned in S. 30 within the period of limitation and, therefore, the Court could not set aside the award on those grounds. There can be no doubt on the scheme of the Act that any objection even in the nature of a written-statement which falls under S. 30 cannot be considered by the Court unless such an objection is made within the period of limitation (namely, 30 days), though if such an objection is made within limitation that objection may in appropriate cases be treated as an application for setting aside the award.10. Learned counsel for the appellant, however, urges that S. 17 gives power to the Court to Set aside the award and that such power can be exercised even where an objection in the form of a written-statement has been made more than 30 days after the service of the notice of the filing of the award as the Court can do so suo motu. He relies in this connection on Hastimal Dalichand v. Hiralal Motichand AIR 1954 Bom 243 and Saha and Co. v. Isharsingh Kripalsingh AIR 1956 Cal 321 (FB).11. Assuming that the Court has power to set aside the award suo motu, we are of opinion that, that power cannot be exercised to set aside an award on grounds which fall under S. 30 of the Act, if taken in an objection petition filed more than 30 days after service of notice of filing of the award, for if that were so the limitation provided under Art. 158 of the Limitation Act would be completely negatived. The two cases on which the appellant relies do not in our opinion support him. In Hastimals case, AIR 1954 Bom 243 , it was observed that"if the award directs a party to do an act which is prohibited by law or if it is otherwise patently illegal or void it would be open to the Court to consider this patent defect in the award suo motu, and when the Court acts suo motu no question of limitation prescribed by Art. 158 can arise".These observations only show that the Court can act suo motu in certain circumstances which do not fall within S. 30 of the Act. Saha and Co.s case , AIR 1956 Cal 321 (FB) , was a decision of five Judges by a majority of 3:2 and the majority judgement is against the appellant. The minority judgement certainly takes the view that the non-existence or invalidity of an arbitration agreement and an order of reference to arbitration may be raised after the period of limitation for the purpose of setting aside an award because they are not grounds for setting aside the award under S. 30. It is not necessary in the present case to resolve the conflict between the majority and the minority Judges in Saha and Co.s case, AIR 1956 Cal. 321 (FB), for even the minority judgment shows that it is only where the grounds are not those falling within S. 30, that the award may be set aside on an objection made beyond the period of limitation, even though no application has been made for setting aside the award within the period of limitation. Clearly, therefore, where an objection as in the present case raises grounds which fall squarely within S. 30 of the Act that objection cannot be heard by the Court and cannot be treated as an application for setting, aside the award unless it is made within the period of limitation. Saha and Co.s case, AIR 1956 Cal 321 (FB), therefore, also does not help the appellant.12. Learned counsel for the appellant also relies on Mohan Das v. Kessumal, AIR 1955 Ajmer 47. In that case the objection which was made more than 30 days after the service of notice was that the award had been filed by a person not authorised by the arbitrator to do so . The Court held that such an objection did not fall within S. 30 of the Act, and, therefore, Art. 158 of the Limitation Act did not apply. On these facts the decision in that case may be right. But the Court seems to have made a general observation that Art. 158 cannot apply to a written-statement by a defendant in reply to an application to have the award made a rule of the Court. If by that general observation the Court means that even if the objection is of the nature falling within S. 30 and is filed more than 30 days after service of notice, it would be open to the Court to set aside the award on such objection, we are of the opinion that the view is incorrect.13.
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consists of arbitration without intervention of a Court and is contained in Chap. II of the Act which has 17 sections from S. 3 to S. 19. The second consists of arbitration with intervention of a Court where there is no suit pending, which is in Chap. III of the Act, and there is only one section (S. 20) therein, as sub-s. (5) thereof applies the other provisions contained in the Act to this type of arbitration also so far as they can be made applicable. The third type of arbitration is contained in Chap. IV, namely arbitration in suits. This chapter contains 5 sections and S. 25 thereof applies the other provisions of the Act so far they can be made applicable.This analysis of the relevant provisions of the Act contained in Chap. II which apply mutatis mutandis to arbitrations of the other two types shows that the Court has to pronounce judgment in accordance with the award if it sees no cause to remit the award or any of the matters referred to arbitration for reconsideration, or if it sees no cause to set aside the award. The Court has to wait for the time given to a party to make an application for setting aside the award and where such an application has been made the Court has to decide it first and if it rejects it the Court proceeds to pronounce judgment according to the award. It is clear, therefore, from S. 17 that an application to set aside the award is contemplated therein and it is only when no such application has been made within the time allowed or if such an application has been filed and has been rejected that the Court proceeds to pronounce judgment in terms of the award.It is clear therefore form from the scheme of the Act that if a party wants an award to be set aside on any of the grounds mentioned in S.30 it must apply within 30 days of the date of service of notice of filing of the award as provided in Art 158 of the Limitation Act. If no such application is made the award cannot be set aside on any of the grounds specified in S.30 of the Act. It may be conceded that there is no special form prescribed for making such an application and in an appropriate case an objection of the type made in this case may be treated as such an application, if it is filed within the period of limitation. But if an objection like this has been filed after the period of limitation it cannot be treated an application to set aside the award for if it is so treated it will be barred by limitation.9. It is not in dispute in the present case that the objections raised by the appellant were covered by S. 30 of the Act, and though the appellant did not pray for setting aside the award in his objection that was what he really wanted the Court to do after hearing his objection As in the present case the objection was filed more than 30 days after the notice it could not be treated as an application for setting the award, for it would then be barred by limitation. The position thus is that in the present case there was no application to set aside the award on grounds mentioned in S. 30 within the period of limitation and, therefore, the Court could not set aside the award on those grounds. There can be no doubt on the scheme of the Act that any objection even in the nature of a written-statement which falls under S. 30 cannot be considered by the Court unless such an objection is made within the period of limitation (namely, 30 days), though if such an objection is made within limitation that objection may in appropriate cases be treated as an application for setting aside thethat the Court has power to set aside the award suo motu, we are of opinion that, that power cannot be exercised to set aside an award on grounds which fall under S. 30 of the Act, if taken in an objection petition filed more than 30 days after service of notice of filing of the award, for if that were so the limitation provided under Art. 158 of the Limitation Act would be completely negatived. The two cases on which the appellant relies do not in our opinion supportis not necessary in the present case to resolve the conflict between the majority and the minority Judges in Saha and Co.s case, AIR 1956 Cal. 321 (FB), for even the minority judgment shows that it is only where the grounds are not those falling within S. 30, that the award may be set aside on an objection made beyond the period of limitation, even though no application has been made for setting aside the award within the period of limitation. Clearly, therefore, where an objection as in the present case raises grounds which fall squarely within S. 30 of the Act that objection cannot be heard by the Court and cannot be treated as an application for setting, aside the award unless it is made within the period of limitation. Saha and Co.s case, AIR 1956 Cal 321 (FB), therefore, also does not help thethese facts the decision in that case may be right. But the Court seems to have made a general observation that Art. 158 cannot apply to a written-statement by a defendant in reply to an application to have the award made a rule of the Court. If by that general observation the Court means that even if the objection is of the nature falling within S. 30 and is filed more than 30 days after service of notice, it would be open to the Court to set aside the award on such objection, we are of the opinion that the view is incorrect.
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Assistant Commissioner of Income Tax Vs. Britto Amusement (P.) Limited | comparing the provisions of the said Act as they stood prior to the amendment, the Tribunal noted that in the 1961 Act, an additional condition was introduced that the payment should be to a shareholder being a person who is the beneficial holder of shares and who has a substantial interest in the company i.e. a shareholding which carries not less than 20 per cent of the voting power. By. the 1987 amendment, the power of the voting rights were reduced to 10 per cent. The learned Tribunal further noted that in the present case, the shareholder who is a registered and beneficial holder of shares, 10 per cent voting powers are Mr. William Britto and Mrs. Muriel Britto as each of them is holding more than 20 per cent shareholding in the assessee capital. It is further noted that the respondent-assessee is neither a registered nor a beneficial holder of the shares. The learned Tribunal has also taken note of the judgment of this Court and noted that the provisions of s. 2(22)(e) of the said IT Act of 1961 cannot be applied in the case of the assessee. The learned Tribunal also considered the judgment of the Special Bench and found that it had taken the same view that deemed dividend cannot be assessed in the hands of a person who is not a shareholder of the company. The learned Tribunal, as such, set aside the order of the CIT(A) and deleted the additions made by the AO as deemed dividend in the hands of the assessee who is not the shareholder of M/s Goa Golf Club (P) Ltd.8. The findings arrived at by the Tribunal that the respondent is not assessee (sic-shareholder) of M/s Goa Golf Club (P) Ltd., has not been disputed by the appellants. In this context, it would be appropriate to note the observations of the Division Bench of this Court in the case of CIT v. Universal Medicare (P.) Ltd. [2010] 324 ITR 263 /190 Taxman 144 wherein it has been observed at para 10 thus :"10. In order that the first part of cl. (e) of s. 2(22) is attracted, the payment by a company has to be by way of an advance or loan. The advance or loan has to be made, as the case may be, either to a shareholder, being a beneficial owner holding not less than ten per cent of the voting power or to any concern to which such a shareholder is a member or a partner and in which he has a substantial interest. The Tribunal in the present case has found that as a matter of fact no loan or advance was granted to the assessee, since the amount in question had actually been defalcated and was not reflected in the books of account of the assessee. The fact that there was a defalcation seems to have been accepted since this amount was allowed as a business loss during the course of asst. yr. 2006-07. Consequently, according to the Tribunal the first requirement of there being an advance or loan was not fulfilled. In our view, the finding that there was no advance or loan is a pure finding of fact which does not give rise to any substantial question of law. However, even on the second aspect which has weighed with the Tribunal, we are of the view that the construction which has been placed on the provisions of s. 2(22)(e) is correct. Sec. 2(22)(e) defines the ambit of the expression dividend. All payments by way of dividend have to be taxed in the hands of the recipient of the dividend namely the shareholder. The effect of s. 2(22) is to provide an inclusive definition of the expression dividend. Clause (e) expands the nature of payments which can be classified as a dividend. Clause (e) of s. 2(22) includes a payment made by the company in which the public is not substantial interested by way of an advance or loan to a shareholder or to any concern to which such shareholder is a member or partner, subject to the fulfilment of the requirements which are spelt out in the provision. Similarly, a payment made by a company on behalf, of for the individual benefit, of any such shareholder is treated by cl. (e) to be included in the expression dividend. Consequently, the effect of cl. (e) of s. 2(22) is to broaden the ambit of the expression dividend by including certain payments which the company has made by way of a loan or advance or payments made on behalf of or for the individual benefit of a shareholder. The definition does not alter the legal position that dividend has to be taxed in the hands of the shareholder. Consequently in the present case the payment, even assuming that it was a dividend, would have to be taxed not in the hands of the assessee but in the hands of the shareholder. The Tribunal was, in the circumstances, justified in coming to the conclusion that, in any event, the payment could not be taxed in the hands of the assessee. We may in concluding note that the basis on which the assessee is sought to be taxed in the present case in respect of the amount of Rs. 32,00,000 is that there was a dividend under s. 2(22)(e) and no other basis has been suggested in the order of the AO."9. Hence, considering the above observation, the Tribunal has rightly found that the respondent is not a shareholder of a company known as M/s Goa Golf Club (P) Ltd., and as such the question of including the disputed amount as deemed dividend in terms of s. 2(22)(e) of the IT Act does not arise at all. Considering the said judgment of this Court and in view of the undisputed facts of the case referred to in the impugned judgment of the Tribunal, we find that no substantial question of law arises in the present appeal. | 0[ds]6. We have considered the submissions of the learned counsel and we have also gone through the impugned judgment. The amount in dispute is a sum of Rs. 33,55,076 which is sought to be made assessable as deemed dividend under s. 2(22)(e) of the IT Act of 1961 in the hands of the respondent. The Tribunal has noted that it is undisputed fact that the AO applied the provisions of s. 2(22)(e) in respect of the payments made by M/s Goa Golf Club (P) Ltd. to M/s Britto Amusement (P) Ltd. The Tribunal so noted that it is an undisputed fact that M/s Britto Amusement (P) Ltd., is not a shareholder of M/s Goa Golf Club (P) Ltd. In order to consider whether such amount can be held to be deemed dividend in the hands of a person other than a shareholder, it would be appropriate to examine the provisions of s. 2(22)(e) of the IT Act of 1961, as amended w.e.f. 1st April, 1988 which reads as under :"(e) Any payment by a company, not being a company in which the public are substantially interested, of any sum (whether as representing a part of the assets of the company or otherwise) made after the 31st day of May, 1987, by way of advance or loan to a shareholder, being a person who is the beneficial owner of shares (not being shares entitled to a fixed rate of dividend whether with or without a right to participate in profits) holding not less than ten percent of the voting power, or to any concern in which such shareholder is a member or a partner and in which he has a substantial interest (hereafter in this clause referred to as the said concern) or any payment by any such company on behalf, or for the individual benefit, of any such shareholder, to the extent to which the company in either case possesses accumulated profits."7. Upon comparing the provisions of the said Act as they stood prior to the amendment, the Tribunal noted that in the 1961 Act, an additional condition was introduced that the payment should be to a shareholder being a person who is the beneficial holder of shares and who has a substantial interest in the company i.e. a shareholding which carries not less than 20 per cent of the voting power. By. the 1987 amendment, the power of the voting rights were reduced to 10 per cent. The learned Tribunal further noted that in the present case, the shareholder who is a registered and beneficial holder of shares, 10 per cent voting powers are Mr. William Britto and Mrs. Muriel Britto as each of them is holding more than 20 per cent shareholding in the assessee capital. It is further noted that theis neither a registered nor a beneficial holder of the shares. The learned Tribunal has also taken note of the judgment of this Court and noted that the provisions of s. 2(22)(e) of the said IT Act of 1961 cannot be applied in the case of the assessee. The learned Tribunal also considered the judgment of the Special Bench and found that it had taken the same view that deemed dividend cannot be assessed in the hands of a person who is not a shareholder of the company. The learned Tribunal, as such, set aside the order of the CIT(A) and deleted the additions made by the AO as deemed dividend in the hands of the assessee who is not the shareholder of M/s Goa Golf Club (P) Ltd.8. The findings arrived at by the Tribunal that the respondent is not assesseeof M/s Goa Golf Club (P) Ltd., has not been disputed by the appellants. In this context, it would be appropriate to note the observations of the Division Bench of this Court in the case of CIT v. Universal Medicare (P.) Ltd. [2010] 324 ITR 263 /190 Taxman 144 wherein it has been observed at para 10 thus :"10. In order that the first part of cl. (e) of s. 2(22) is attracted, the payment by a company has to be by way of an advance or loan. The advance or loan has to be made, as the case may be, either to a shareholder, being a beneficial owner holding not less than ten per cent of the voting power or to any concern to which such a shareholder is a member or a partner and in which he has a substantial interest. The Tribunal in the present case has found that as a matter of fact no loan or advance was granted to the assessee, since the amount in question had actually been defalcated and was not reflected in the books of account of the assessee. The fact that there was a defalcation seems to have been accepted since this amount was allowed as a business loss during the course of asst. yr.Consequently, according to the Tribunal the first requirement of there being an advance or loan was not fulfilled. In our view, the finding that there was no advance or loan is a pure finding of fact which does not give rise to any substantial question of law. However, even on the second aspect which has weighed with the Tribunal, we are of the view that the construction which has been placed on the provisions of s. 2(22)(e) is correct. Sec. 2(22)(e) defines the ambit of the expression dividend. All payments by way of dividend have to be taxed in the hands of the recipient of the dividend namely the shareholder. The effect of s. 2(22) is to provide an inclusive definition of the expression dividend. Clause (e) expands the nature of payments which can be classified as a dividend. Clause (e) of s. 2(22) includes a payment made by the company in which the public is not substantial interested by way of an advance or loan to a shareholder or to any concern to which such shareholder is a member or partner, subject to the fulfilment of the requirements which are spelt out in the provision. Similarly, a payment made by a company on behalf, of for the individual benefit, of any such shareholder is treated by cl. (e) to be included in the expression dividend. Consequently, the effect of cl. (e) of s. 2(22) is to broaden the ambit of the expression dividend by including certain payments which the company has made by way of a loan or advance or payments made on behalf of or for the individual benefit of a shareholder. The definition does not alter the legal position that dividend has to be taxed in the hands of the shareholder. Consequently in the present case the payment, even assuming that it was a dividend, would have to be taxed not in the hands of the assessee but in the hands of the shareholder. The Tribunal was, in the circumstances, justified in coming to the conclusion that, in any event, the payment could not be taxed in the hands of the assessee. We may in concluding note that the basis on which the assessee is sought to be taxed in the present case in respect of the amount of Rs. 32,00,000 is that there was a dividend under s. 2(22)(e) and no other basis has been suggested in the order of the AO."9. Hence, considering the above observation, the Tribunal has rightly found that the respondent is not a shareholder of a company known as M/s Goa Golf Club (P) Ltd., and as such the question of including the disputed amount as deemed dividend in terms of s. 2(22)(e) of the IT Act does not arise at all. Considering the said judgment of this Court and in view of the undisputed facts of the case referred to in the impugned judgment of the Tribunal, we find that no substantial question of law arises in the present appeal. | 0 | 2,812 | 1,520 | ### Instruction:
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comparing the provisions of the said Act as they stood prior to the amendment, the Tribunal noted that in the 1961 Act, an additional condition was introduced that the payment should be to a shareholder being a person who is the beneficial holder of shares and who has a substantial interest in the company i.e. a shareholding which carries not less than 20 per cent of the voting power. By. the 1987 amendment, the power of the voting rights were reduced to 10 per cent. The learned Tribunal further noted that in the present case, the shareholder who is a registered and beneficial holder of shares, 10 per cent voting powers are Mr. William Britto and Mrs. Muriel Britto as each of them is holding more than 20 per cent shareholding in the assessee capital. It is further noted that the respondent-assessee is neither a registered nor a beneficial holder of the shares. The learned Tribunal has also taken note of the judgment of this Court and noted that the provisions of s. 2(22)(e) of the said IT Act of 1961 cannot be applied in the case of the assessee. The learned Tribunal also considered the judgment of the Special Bench and found that it had taken the same view that deemed dividend cannot be assessed in the hands of a person who is not a shareholder of the company. The learned Tribunal, as such, set aside the order of the CIT(A) and deleted the additions made by the AO as deemed dividend in the hands of the assessee who is not the shareholder of M/s Goa Golf Club (P) Ltd.8. The findings arrived at by the Tribunal that the respondent is not assessee (sic-shareholder) of M/s Goa Golf Club (P) Ltd., has not been disputed by the appellants. In this context, it would be appropriate to note the observations of the Division Bench of this Court in the case of CIT v. Universal Medicare (P.) Ltd. [2010] 324 ITR 263 /190 Taxman 144 wherein it has been observed at para 10 thus :"10. In order that the first part of cl. (e) of s. 2(22) is attracted, the payment by a company has to be by way of an advance or loan. The advance or loan has to be made, as the case may be, either to a shareholder, being a beneficial owner holding not less than ten per cent of the voting power or to any concern to which such a shareholder is a member or a partner and in which he has a substantial interest. The Tribunal in the present case has found that as a matter of fact no loan or advance was granted to the assessee, since the amount in question had actually been defalcated and was not reflected in the books of account of the assessee. The fact that there was a defalcation seems to have been accepted since this amount was allowed as a business loss during the course of asst. yr. 2006-07. Consequently, according to the Tribunal the first requirement of there being an advance or loan was not fulfilled. In our view, the finding that there was no advance or loan is a pure finding of fact which does not give rise to any substantial question of law. However, even on the second aspect which has weighed with the Tribunal, we are of the view that the construction which has been placed on the provisions of s. 2(22)(e) is correct. Sec. 2(22)(e) defines the ambit of the expression dividend. All payments by way of dividend have to be taxed in the hands of the recipient of the dividend namely the shareholder. The effect of s. 2(22) is to provide an inclusive definition of the expression dividend. Clause (e) expands the nature of payments which can be classified as a dividend. Clause (e) of s. 2(22) includes a payment made by the company in which the public is not substantial interested by way of an advance or loan to a shareholder or to any concern to which such shareholder is a member or partner, subject to the fulfilment of the requirements which are spelt out in the provision. Similarly, a payment made by a company on behalf, of for the individual benefit, of any such shareholder is treated by cl. (e) to be included in the expression dividend. Consequently, the effect of cl. (e) of s. 2(22) is to broaden the ambit of the expression dividend by including certain payments which the company has made by way of a loan or advance or payments made on behalf of or for the individual benefit of a shareholder. The definition does not alter the legal position that dividend has to be taxed in the hands of the shareholder. Consequently in the present case the payment, even assuming that it was a dividend, would have to be taxed not in the hands of the assessee but in the hands of the shareholder. The Tribunal was, in the circumstances, justified in coming to the conclusion that, in any event, the payment could not be taxed in the hands of the assessee. We may in concluding note that the basis on which the assessee is sought to be taxed in the present case in respect of the amount of Rs. 32,00,000 is that there was a dividend under s. 2(22)(e) and no other basis has been suggested in the order of the AO."9. Hence, considering the above observation, the Tribunal has rightly found that the respondent is not a shareholder of a company known as M/s Goa Golf Club (P) Ltd., and as such the question of including the disputed amount as deemed dividend in terms of s. 2(22)(e) of the IT Act does not arise at all. Considering the said judgment of this Court and in view of the undisputed facts of the case referred to in the impugned judgment of the Tribunal, we find that no substantial question of law arises in the present appeal.
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case possesses accumulated profits."7. Upon comparing the provisions of the said Act as they stood prior to the amendment, the Tribunal noted that in the 1961 Act, an additional condition was introduced that the payment should be to a shareholder being a person who is the beneficial holder of shares and who has a substantial interest in the company i.e. a shareholding which carries not less than 20 per cent of the voting power. By. the 1987 amendment, the power of the voting rights were reduced to 10 per cent. The learned Tribunal further noted that in the present case, the shareholder who is a registered and beneficial holder of shares, 10 per cent voting powers are Mr. William Britto and Mrs. Muriel Britto as each of them is holding more than 20 per cent shareholding in the assessee capital. It is further noted that theis neither a registered nor a beneficial holder of the shares. The learned Tribunal has also taken note of the judgment of this Court and noted that the provisions of s. 2(22)(e) of the said IT Act of 1961 cannot be applied in the case of the assessee. The learned Tribunal also considered the judgment of the Special Bench and found that it had taken the same view that deemed dividend cannot be assessed in the hands of a person who is not a shareholder of the company. The learned Tribunal, as such, set aside the order of the CIT(A) and deleted the additions made by the AO as deemed dividend in the hands of the assessee who is not the shareholder of M/s Goa Golf Club (P) Ltd.8. The findings arrived at by the Tribunal that the respondent is not assesseeof M/s Goa Golf Club (P) Ltd., has not been disputed by the appellants. In this context, it would be appropriate to note the observations of the Division Bench of this Court in the case of CIT v. Universal Medicare (P.) Ltd. [2010] 324 ITR 263 /190 Taxman 144 wherein it has been observed at para 10 thus :"10. In order that the first part of cl. (e) of s. 2(22) is attracted, the payment by a company has to be by way of an advance or loan. The advance or loan has to be made, as the case may be, either to a shareholder, being a beneficial owner holding not less than ten per cent of the voting power or to any concern to which such a shareholder is a member or a partner and in which he has a substantial interest. The Tribunal in the present case has found that as a matter of fact no loan or advance was granted to the assessee, since the amount in question had actually been defalcated and was not reflected in the books of account of the assessee. The fact that there was a defalcation seems to have been accepted since this amount was allowed as a business loss during the course of asst. yr.Consequently, according to the Tribunal the first requirement of there being an advance or loan was not fulfilled. In our view, the finding that there was no advance or loan is a pure finding of fact which does not give rise to any substantial question of law. However, even on the second aspect which has weighed with the Tribunal, we are of the view that the construction which has been placed on the provisions of s. 2(22)(e) is correct. Sec. 2(22)(e) defines the ambit of the expression dividend. All payments by way of dividend have to be taxed in the hands of the recipient of the dividend namely the shareholder. The effect of s. 2(22) is to provide an inclusive definition of the expression dividend. Clause (e) expands the nature of payments which can be classified as a dividend. Clause (e) of s. 2(22) includes a payment made by the company in which the public is not substantial interested by way of an advance or loan to a shareholder or to any concern to which such shareholder is a member or partner, subject to the fulfilment of the requirements which are spelt out in the provision. Similarly, a payment made by a company on behalf, of for the individual benefit, of any such shareholder is treated by cl. (e) to be included in the expression dividend. Consequently, the effect of cl. (e) of s. 2(22) is to broaden the ambit of the expression dividend by including certain payments which the company has made by way of a loan or advance or payments made on behalf of or for the individual benefit of a shareholder. The definition does not alter the legal position that dividend has to be taxed in the hands of the shareholder. Consequently in the present case the payment, even assuming that it was a dividend, would have to be taxed not in the hands of the assessee but in the hands of the shareholder. The Tribunal was, in the circumstances, justified in coming to the conclusion that, in any event, the payment could not be taxed in the hands of the assessee. We may in concluding note that the basis on which the assessee is sought to be taxed in the present case in respect of the amount of Rs. 32,00,000 is that there was a dividend under s. 2(22)(e) and no other basis has been suggested in the order of the AO."9. Hence, considering the above observation, the Tribunal has rightly found that the respondent is not a shareholder of a company known as M/s Goa Golf Club (P) Ltd., and as such the question of including the disputed amount as deemed dividend in terms of s. 2(22)(e) of the IT Act does not arise at all. Considering the said judgment of this Court and in view of the undisputed facts of the case referred to in the impugned judgment of the Tribunal, we find that no substantial question of law arises in the present appeal.
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ANJUM HUSSAIN Vs. INTELLICITY BUSINESS PARK PVT LTD | the same cause of action as the persons represented by him. The rule is being substituted by a new rule and an explanation is being added to clarify that such persons need not have the same cause of action.?There is, therefore, no doubt that the persons who may be represented in a sui under Order I, Rule 8 need not have the same cause of action. The trial court in the present case was right in permitting the respondent to sue on behalf of all the allottees of Ashok Nagar. We, therefore, do not find any merit in this appeal which is dismissed with costs. Before closing, however, we would like to point out that the plaintiff has represented only those in the low income group in Ashok Nagar who will be governed by this judgment, and nothing that has been said or decided in this case is applicable to any other group or colony.?13. Very same issue was dealt with by Full Bench of the National Commission in Ambrish Kumar Shukla and Ors. vs. Ferrous Infrastructure Pvt. Ltd. Consumer Case No.97 of 2016, decided on 07.10.2016 . The National Commission relied upon the decision of this Court in T.N. Housing Board (1990) 1 SCC 608 . Relevant portion of the decision of the National Commission was :-?10. Since by virtue of Section 13(6) of the Consumer Protection Act, the provisions of the Order 1 Rule 8 of CPC apply to the consumer complaints filed by one or more consumers where there are numerous consumers having the same interest, the decision of the Honble Supreme Court in Tamil Nadu Housing Board (supra) would squarely apply, while answering the reference. The purpose of giving a statutory recognition to such a complaint being to avoid the multiplicity of litigation, the effort should be to give an interpretation which would sub serve the said objective, by reducing the increasing inflow of the consumer complaints to the Consumer Forums. The reduction in the number of consumer complaints will be cost effective not only for the consumers but also for the service provider.11..……As held by the Honble Supreme Court in Tamil Nadu Housing Board (supra), the interest of the persons on whose behalf the claim is brought must be common or they must have a common grievance which they seek to get addressed. The defect or deficiency in 2 Consumer Case No.97 of 2016, decided on 07.10.2016 the goods purchased, or the services hired or availed of by them should be the same for all the consumers on whose behalf or for whose benefit the complaint is filed. Therefore, the oneness of the interest is akin to a common grievance against the same person. If, for instance, a number of flats or plots in a project are sold by a builder/developer to a number of persons, he fails to deliver possession of the said flats/plots within the time frame promised by him, and a complaint is filed by one or more such persons, either seeking delivery of possession of flats/plots purchased by them and other purchasers in the said project, or refund of the money paid by them and the other purchasers to the developer/builder is sought, the grievance of such persons being common i.e. the failure of the builder/developer to deliver timely possession of the flats/plots sold to them, they would have same interest in the subject matter of the complaint and sufficient community of interest to justify the adoption of the procedure prescribed in Order 1 Rule 8 of the Code of Civil Procedure, provided that the complaint is filed on behalf of or for the benefit of all the persons having a common grievance against the same developer/builder, and identical relief is sought for all such consumers.The primary object behind permitting a class action such as a complaint under Section 12(1)(c) of the Consumer Protection Act being to facilitate the decision of a consumer dispute in which a large number of consumers are interested, without recourse to each of them filing an individual complaint, it is necessary that such a complaint is filed on behalf of or for the benefit of all the persons having such a community of interest. A complaint on behalf of only some of them therefore will not be maintainable. If for instance, 100 flat buyers/plot buyers in a project have a common grievance against the Builder/Developer and a complaint under Section 12(1)(c) of the Consumer Protection Act is filed on behalf of or for the benefit of say 10 of them, the primary purposebehind permitting a class action will not be achieved, since the remaining 90 aggrieved persons will be compelled either to file individual complaints or to file complaints on behalf of or for the benefit of the different group of purchasers in the same project. This, in our view, could not have been the Legislative intent. The term persons so interested and persons having the same interest used in Section 12(1)(c) mean, the persons having a common grievance against the same service provider. The use of the words all consumers so interested and "on behalf of or for the benefit of all consumers so interested", in Section 12(1) (c) leaves no doubt that such a complaint must necessarily be filed on behalf of or for the benefit of all the persons having a common grievance, seeking a common relief and consequently having a community of interest against the same service provider.?14. It was observed by this Court in T.N. Housing Board (1990) 1 SCC 608 that the provision must receive an interpretation which would subserve the object for its enactment. It is in this light that the Full Bench of the National Commission held that oneness of the interest is akin to a common grievance against the same person.15. However, the National Commission in the instant case, completely lost sight of the principles so clearly laid down in the decisions referred to above. In our view, the approach in the instant case was totally erroneous. | 1[ds]11. According to the National Commission, though all the appellants had a common grievance that the respondent had not delivered possession of the respective units booked by them and thus the respondent was deficient in rendering service, it was not shown how many of the allottees had booked the shops/commercial units solely for the purchase of earning their livelihood by way of self-employment.However, the National Commission in the instant case, completely lost sight of the principles so clearly laid down in the decisions referred to above. In our view, the approach in the instant case was totally erroneous. | 1 | 3,644 | 110 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
### Input:
the same cause of action as the persons represented by him. The rule is being substituted by a new rule and an explanation is being added to clarify that such persons need not have the same cause of action.?There is, therefore, no doubt that the persons who may be represented in a sui under Order I, Rule 8 need not have the same cause of action. The trial court in the present case was right in permitting the respondent to sue on behalf of all the allottees of Ashok Nagar. We, therefore, do not find any merit in this appeal which is dismissed with costs. Before closing, however, we would like to point out that the plaintiff has represented only those in the low income group in Ashok Nagar who will be governed by this judgment, and nothing that has been said or decided in this case is applicable to any other group or colony.?13. Very same issue was dealt with by Full Bench of the National Commission in Ambrish Kumar Shukla and Ors. vs. Ferrous Infrastructure Pvt. Ltd. Consumer Case No.97 of 2016, decided on 07.10.2016 . The National Commission relied upon the decision of this Court in T.N. Housing Board (1990) 1 SCC 608 . Relevant portion of the decision of the National Commission was :-?10. Since by virtue of Section 13(6) of the Consumer Protection Act, the provisions of the Order 1 Rule 8 of CPC apply to the consumer complaints filed by one or more consumers where there are numerous consumers having the same interest, the decision of the Honble Supreme Court in Tamil Nadu Housing Board (supra) would squarely apply, while answering the reference. The purpose of giving a statutory recognition to such a complaint being to avoid the multiplicity of litigation, the effort should be to give an interpretation which would sub serve the said objective, by reducing the increasing inflow of the consumer complaints to the Consumer Forums. The reduction in the number of consumer complaints will be cost effective not only for the consumers but also for the service provider.11..……As held by the Honble Supreme Court in Tamil Nadu Housing Board (supra), the interest of the persons on whose behalf the claim is brought must be common or they must have a common grievance which they seek to get addressed. The defect or deficiency in 2 Consumer Case No.97 of 2016, decided on 07.10.2016 the goods purchased, or the services hired or availed of by them should be the same for all the consumers on whose behalf or for whose benefit the complaint is filed. Therefore, the oneness of the interest is akin to a common grievance against the same person. If, for instance, a number of flats or plots in a project are sold by a builder/developer to a number of persons, he fails to deliver possession of the said flats/plots within the time frame promised by him, and a complaint is filed by one or more such persons, either seeking delivery of possession of flats/plots purchased by them and other purchasers in the said project, or refund of the money paid by them and the other purchasers to the developer/builder is sought, the grievance of such persons being common i.e. the failure of the builder/developer to deliver timely possession of the flats/plots sold to them, they would have same interest in the subject matter of the complaint and sufficient community of interest to justify the adoption of the procedure prescribed in Order 1 Rule 8 of the Code of Civil Procedure, provided that the complaint is filed on behalf of or for the benefit of all the persons having a common grievance against the same developer/builder, and identical relief is sought for all such consumers.The primary object behind permitting a class action such as a complaint under Section 12(1)(c) of the Consumer Protection Act being to facilitate the decision of a consumer dispute in which a large number of consumers are interested, without recourse to each of them filing an individual complaint, it is necessary that such a complaint is filed on behalf of or for the benefit of all the persons having such a community of interest. A complaint on behalf of only some of them therefore will not be maintainable. If for instance, 100 flat buyers/plot buyers in a project have a common grievance against the Builder/Developer and a complaint under Section 12(1)(c) of the Consumer Protection Act is filed on behalf of or for the benefit of say 10 of them, the primary purposebehind permitting a class action will not be achieved, since the remaining 90 aggrieved persons will be compelled either to file individual complaints or to file complaints on behalf of or for the benefit of the different group of purchasers in the same project. This, in our view, could not have been the Legislative intent. The term persons so interested and persons having the same interest used in Section 12(1)(c) mean, the persons having a common grievance against the same service provider. The use of the words all consumers so interested and "on behalf of or for the benefit of all consumers so interested", in Section 12(1) (c) leaves no doubt that such a complaint must necessarily be filed on behalf of or for the benefit of all the persons having a common grievance, seeking a common relief and consequently having a community of interest against the same service provider.?14. It was observed by this Court in T.N. Housing Board (1990) 1 SCC 608 that the provision must receive an interpretation which would subserve the object for its enactment. It is in this light that the Full Bench of the National Commission held that oneness of the interest is akin to a common grievance against the same person.15. However, the National Commission in the instant case, completely lost sight of the principles so clearly laid down in the decisions referred to above. In our view, the approach in the instant case was totally erroneous.
### Response:
1
### Explanation:
11. According to the National Commission, though all the appellants had a common grievance that the respondent had not delivered possession of the respective units booked by them and thus the respondent was deficient in rendering service, it was not shown how many of the allottees had booked the shops/commercial units solely for the purchase of earning their livelihood by way of self-employment.However, the National Commission in the instant case, completely lost sight of the principles so clearly laid down in the decisions referred to above. In our view, the approach in the instant case was totally erroneous.
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Commissioner Of Wealth Tax Bombayand Another Vs. Mrs. Kasturbai Walchand & Others | Assistant Commissioner as no appeals had been filed by the respondent. Meanwhile, however, during the pendency of the appeals before the Appellate Tribunal, the respondent preferred revision applications on June 29, 1962, under subsection (1) of section 25 to the Commissioner of Wealth-tax in respect of the aforesaid assessment years and contended that the valuation of the shares adopted by the Appellate Assistant Commissioner was unreasonable and excessive and should be duly modified. The Commissioner made an order dated August 12, 1964, rejecting the revision applications on the ground that they were incompetent in view of clause (b) of the proviso to sub-section (1) of section 25 of the Act. Against that order, the respondent filed a writ petition in the High Court of Bombay and contended that the Commissioner had erred in dismissing the revision applications as incompetent. On October 10, 11, 1966, a learned single judge of the High Court allowed the writ petition holding the revision applications to be competent and, accordingly, directed the Commissioner to entertain and dispose of the revision applications in accordance with law. The Commissioner appealed to a Division Bench of the High Court and the appeal was dismissed on January 10, 1973The relevant provisions of section 25 of the Wealth-tax Act read as follows: "Powers of Commissioner to revise orders of subordinate authorities. - (1) The Commissioner may, either of his own motion or on application made by an assessee in this behalf, call for the record of any proceeding under this Act in which an order has been passed by any authority subordinate to him, and may make such inquiry, or cause such inquiry to be made, and, subject to the provisions of this Act, pass such order thereon, not being an order prejudicial to the assessee, as the Commissioner thinks fitProvided that the Commissioner shall not revise any order under this sub-section in any case (a) where an appeal against the order lies to the Appellate Assistant Commissioner or to the Appellate Tribunal, the time within which such appeal can be made has not expired or in the case of an appeal to the Appellate Tribunal, the assessee has not waived his right of appeal ;(b) where the order is the subject of an appeal before the Appellate Assistant Commissioner or the Appellate Tribunal." 4. The High Court has taken the view that clause (b) of the proviso to sub-section (1) of section 25 of the Act operates as a bar to a revision application by an assessee before the Commissioner only where the assessee has also filed an appeal before the Appellate Tribunal. According to the High Court, the bar does not come into operation against an assessee where the appeal before the Appellate Tribunal has been filed by the Revenue. It seems to us that the view taken by the High Court cannot be sustained. Where an appeal is filed before the Appellate Tribunal against an order of the Appellate Assistant Commissioner, the impugned order merges in the order of the Appellate Tribunal when the appeal is disposed of on merits. If, meanwhile, a revision application has been filed before the Commissioner against the same order of the Appellate Assistant Commissioner, it will not be open to the Commissioner to pass any order in revision against the order of the Appellate Assistant Commissioner as the latter would have merged with the order of the Appellate Tribunal. It is immaterial that the appeal and the revision application have not been filed by the same party. This would be plainly so as, in the present case, the subject-matter of the appeal before the Appellate Tribunal is the same as that of the revision application before the Commissioner. Here, the subject-matter of the appeal before the Appellate Tribunal was the valuation of the shares held by the respondent. So, it was also in the revision application before the CommissionerIn the circumstances, we are unable to agree with the reasoning adopted by the High Court. The High Court has proceeded on the view that it was open to the Commissioner to dispose of the revision applications filed by the respondents. The High Court, it seems to us, omitted to consider that the appeals filed before the Tribunal had been disposed of and the impugned order of the Appellate Assistant Commissioner must be taken to have merged in the order of the Appellate Tribunal. The revision applications, in short, had become infructuous. 5. What the respondent should have done, on coming to know of the filing of the appeal by the Revenue before the Appellate Tribunal, was to have withdrawn the revision petitions filed before the Commissioner and filed her own appeals before the Appellate Tribunal with an application for condonation of delay under sub-section (3) of section 24, in case the period of limitation had expired and, accordingly, both the sets of appeals would have been disposed of by the Appellate Tribunal. In case the respondent came to know of the filing of the appeals by the Revenue before the Appellate Tribunal and had not yet applied in revision to the Commissioner, she should not have filed the revision applications but should have preferred her own appeals before the Appellate Tribunal. It must be noted that the Appellate Tribunal is a body superior to the Commissioner, as will be clear from sub-section (1) of section 26 which provides that an appeal will lie to the Appellate Tribunal from an order under sub-section (2) of section 25 of the Commissioner. There would have been no difficulty in the Appellate Tribunal considering the appeals of both parties and passing suitable orders in regard to the valuation of the shares. There is no difficulty now in dealing with such a situation in view of sub-section (2A) of section 24In the case of the other respondents, there is a similar history of proceedings with similar orders passed therein, and this judgment will be considered as disposing of the appeals filed here in those cases also. 6. | 1[ds]The High Court, it seems to us, omitted to consider that the appeals filed before the Tribunal had been disposed of and the impugned order of the Appellate Assistant Commissioner must be taken to have merged in the order of the Appellate Tribunal. The revision applications, in short, had becomethe respondent should have done, on coming to know of the filing of the appeal by the Revenue before the Appellate Tribunal, was to have withdrawn the revision petitions filed before the Commissioner and filed her own appeals before the Appellate Tribunal with an application for condonation of delay under sub-section (3) of section 24, in case the period of limitation had expired and, accordingly, both the sets of appeals would have been disposed of by the Appellate Tribunal. In case the respondent came to know of the filing of the appeals by the Revenue before the Appellate Tribunal and had not yet applied in revision to the Commissioner, she should not have filed the revision applications but should have preferred her own appeals before the Appellate Tribunal. It must be noted that the Appellate Tribunal is a body superior to the Commissioner, as will be clear from sub-section (1) of section 26 which provides that an appeal will lie to the Appellate Tribunal from an order under sub-section (2) of section 25 of the Commissioner. There would have been no difficulty in the Appellate Tribunal considering the appeals of both parties and passing suitable orders in regard to the valuation of the shares. There is no difficulty now in dealing with such a situation in view of sub-section (2A) of section 24In the case of the other respondents, there is a similar history of proceedings with similar orders passed therein, and this judgment will be considered as disposing of the appeals filed here in those cases also | 1 | 1,560 | 337 | ### 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:
Assistant Commissioner as no appeals had been filed by the respondent. Meanwhile, however, during the pendency of the appeals before the Appellate Tribunal, the respondent preferred revision applications on June 29, 1962, under subsection (1) of section 25 to the Commissioner of Wealth-tax in respect of the aforesaid assessment years and contended that the valuation of the shares adopted by the Appellate Assistant Commissioner was unreasonable and excessive and should be duly modified. The Commissioner made an order dated August 12, 1964, rejecting the revision applications on the ground that they were incompetent in view of clause (b) of the proviso to sub-section (1) of section 25 of the Act. Against that order, the respondent filed a writ petition in the High Court of Bombay and contended that the Commissioner had erred in dismissing the revision applications as incompetent. On October 10, 11, 1966, a learned single judge of the High Court allowed the writ petition holding the revision applications to be competent and, accordingly, directed the Commissioner to entertain and dispose of the revision applications in accordance with law. The Commissioner appealed to a Division Bench of the High Court and the appeal was dismissed on January 10, 1973The relevant provisions of section 25 of the Wealth-tax Act read as follows: "Powers of Commissioner to revise orders of subordinate authorities. - (1) The Commissioner may, either of his own motion or on application made by an assessee in this behalf, call for the record of any proceeding under this Act in which an order has been passed by any authority subordinate to him, and may make such inquiry, or cause such inquiry to be made, and, subject to the provisions of this Act, pass such order thereon, not being an order prejudicial to the assessee, as the Commissioner thinks fitProvided that the Commissioner shall not revise any order under this sub-section in any case (a) where an appeal against the order lies to the Appellate Assistant Commissioner or to the Appellate Tribunal, the time within which such appeal can be made has not expired or in the case of an appeal to the Appellate Tribunal, the assessee has not waived his right of appeal ;(b) where the order is the subject of an appeal before the Appellate Assistant Commissioner or the Appellate Tribunal." 4. The High Court has taken the view that clause (b) of the proviso to sub-section (1) of section 25 of the Act operates as a bar to a revision application by an assessee before the Commissioner only where the assessee has also filed an appeal before the Appellate Tribunal. According to the High Court, the bar does not come into operation against an assessee where the appeal before the Appellate Tribunal has been filed by the Revenue. It seems to us that the view taken by the High Court cannot be sustained. Where an appeal is filed before the Appellate Tribunal against an order of the Appellate Assistant Commissioner, the impugned order merges in the order of the Appellate Tribunal when the appeal is disposed of on merits. If, meanwhile, a revision application has been filed before the Commissioner against the same order of the Appellate Assistant Commissioner, it will not be open to the Commissioner to pass any order in revision against the order of the Appellate Assistant Commissioner as the latter would have merged with the order of the Appellate Tribunal. It is immaterial that the appeal and the revision application have not been filed by the same party. This would be plainly so as, in the present case, the subject-matter of the appeal before the Appellate Tribunal is the same as that of the revision application before the Commissioner. Here, the subject-matter of the appeal before the Appellate Tribunal was the valuation of the shares held by the respondent. So, it was also in the revision application before the CommissionerIn the circumstances, we are unable to agree with the reasoning adopted by the High Court. The High Court has proceeded on the view that it was open to the Commissioner to dispose of the revision applications filed by the respondents. The High Court, it seems to us, omitted to consider that the appeals filed before the Tribunal had been disposed of and the impugned order of the Appellate Assistant Commissioner must be taken to have merged in the order of the Appellate Tribunal. The revision applications, in short, had become infructuous. 5. What the respondent should have done, on coming to know of the filing of the appeal by the Revenue before the Appellate Tribunal, was to have withdrawn the revision petitions filed before the Commissioner and filed her own appeals before the Appellate Tribunal with an application for condonation of delay under sub-section (3) of section 24, in case the period of limitation had expired and, accordingly, both the sets of appeals would have been disposed of by the Appellate Tribunal. In case the respondent came to know of the filing of the appeals by the Revenue before the Appellate Tribunal and had not yet applied in revision to the Commissioner, she should not have filed the revision applications but should have preferred her own appeals before the Appellate Tribunal. It must be noted that the Appellate Tribunal is a body superior to the Commissioner, as will be clear from sub-section (1) of section 26 which provides that an appeal will lie to the Appellate Tribunal from an order under sub-section (2) of section 25 of the Commissioner. There would have been no difficulty in the Appellate Tribunal considering the appeals of both parties and passing suitable orders in regard to the valuation of the shares. There is no difficulty now in dealing with such a situation in view of sub-section (2A) of section 24In the case of the other respondents, there is a similar history of proceedings with similar orders passed therein, and this judgment will be considered as disposing of the appeals filed here in those cases also. 6.
### Response:
1
### Explanation:
The High Court, it seems to us, omitted to consider that the appeals filed before the Tribunal had been disposed of and the impugned order of the Appellate Assistant Commissioner must be taken to have merged in the order of the Appellate Tribunal. The revision applications, in short, had becomethe respondent should have done, on coming to know of the filing of the appeal by the Revenue before the Appellate Tribunal, was to have withdrawn the revision petitions filed before the Commissioner and filed her own appeals before the Appellate Tribunal with an application for condonation of delay under sub-section (3) of section 24, in case the period of limitation had expired and, accordingly, both the sets of appeals would have been disposed of by the Appellate Tribunal. In case the respondent came to know of the filing of the appeals by the Revenue before the Appellate Tribunal and had not yet applied in revision to the Commissioner, she should not have filed the revision applications but should have preferred her own appeals before the Appellate Tribunal. It must be noted that the Appellate Tribunal is a body superior to the Commissioner, as will be clear from sub-section (1) of section 26 which provides that an appeal will lie to the Appellate Tribunal from an order under sub-section (2) of section 25 of the Commissioner. There would have been no difficulty in the Appellate Tribunal considering the appeals of both parties and passing suitable orders in regard to the valuation of the shares. There is no difficulty now in dealing with such a situation in view of sub-section (2A) of section 24In the case of the other respondents, there is a similar history of proceedings with similar orders passed therein, and this judgment will be considered as disposing of the appeals filed here in those cases also
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Apparaju Malhar Rao Vs. Bandi Venkateshwarlu | Abhay Manohar Sapre, J. 1. This appeal is filed by defendant No.1 against the final judgment and order dated 30.12.2005 passed by the High Court of Judicature of Andhra Pradesh at Hyderabad in Second Appeal No. 743 of 2004 whereby the High Court allowed the second appeal filed by the plaintiff and set aside the judgment and decree dated 24.03.2004 passed by the Additional District Judge (FTC), Karimnagar in A.S. No. 34 of 1999 and confirmed the judgment and decree dated 26.03.1999 passed by the Principal Junior Civil Judge, Karimnagar in O.S. No. 338 of 1994. 2. We herein set out the facts, in brief, to appreciate the issue involved in this appeal. 3. The appellant herein is defendant No.1, respondent No.1 is the plaintiff (since dead) and respondent No. 2 is defendant No.3 (son of late defendant No.2) and respondent No.3 is the wife of defendant No.2. Defendant No.2 died during the pendency of the case before the High Court and his legal representative is respondent No.3 herein. 4. Respondent No.1-Plaintiff filed a suit for perpetual injunction against the defendants restraining them from interfering with the peaceful possession and enjoyment of the plaintiff in respect of land measuring 5 guntas and 7 sq. yds. (hereinafter referred to as suit land) in Survey No.1128/A situated at Mankanmathota in Karimnagar. 5. On 20.01.1995, the defendants filed written statement and denied the claim of the plaintiff. It was, inter alia, contended that the plaintiff is not the owner and possessor of suit land. 6. The Trial Court framed the issues and parties adduced their evidence. By judgment/decree dated 26.03.1999, the Trial Court decreed the suit in favour of the plaintiff. 7. Aggrieved by the said judgment/decree, the defendants filed first appeal being Appeal Suit No.34 of 1999 before the Additional District Judge (FTC), Karimnagar (A.P.). By judgment/decree dated 24.03.2004, the Additional District Judge allowed the first appeal, set aside the judgment/decree of the Trial Court and dismissed the suit. 8. Against the said judgment/decree, the plaintiff filed second appeal being S.A. No.743 of 2004 before the High Court. 9. The High Court, by the impugned judgment dated 13.12.2005, allowed the appeal and set aside the judgment/decree dated 24.03.2004 passed by the First Appellate Court in A.S. No.34 of 1999 and restored the judgment/decree dated 26.03.1999 passed by the Trial Court in O.S. No.338 of 1994 which had decreed the plaintiffs suit. 10. Felt aggrieved, defendant No.3 has filed this appeal by way of special leave before this Court. 11. Heard Mr. D. Mahesh Babu, learned counsel for the appellant. Nobody appears for the respondents. 12. Having heard the learned counsel for the appellant and on perusal of the record of the case, we are constrained to allow the appeal and while setting aside the impugned order, remand the case to the High Court for deciding the second appeal afresh in accordance with law as indicated below. 13. The reasons to remand the case to the High Court has occasioned because the High Court while allowing the second appeal filed by the plaintiff (respondent No.1 herein) did not frame any substantial question of law as is required to be framed at the time of admission of the second appeal and proceeded to allow the appeal filed by the plaintiff. 14. A three Judge Bench of this Court in Santosh Hazari v. Purushottam Tiwari (Deceased) by L.Rs., 2001(3) R.C.R.(Civil) 243 : (2001) 3 SCC 179 had examined the scope of Section 100 of the Code of the Civil Procedure, 1908 (hereinafter referred to as the Code). Justice R.C. Lahoti (as His Lordship then was) speaking for the Bench laid down the following proposition of law in Para 9: 9. The High Court cannot proceed to hear a second appeal without formulating the substantial question of law involved in the appeal and if it does so it acts illegally and in abnegation or abdication of the duty case on Court. The existence of substantial question of law is the sine qua non for the exercise of the jurisdiction under the amended Section 100 of the Code. (See Kshitish Chandra Purkait v. Santosh Kumar Purkait, 1997(3) R.C.R.(Civil) 197 : (1997) 5 SCC 438 Panchugopal Barua v. Umesh Chandra Goswami, 1997(2) R.C.R.(Civil) 1 : 1997(1) R.C.R.(Rent) 370 : (1997) 4 SCC 713 and Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, 1999(2) R.C.R.(Civil) 587 : (1999) 3 SCC 722.) 15. His Lordship then in Paras 10 to 14 succinctly explained the meaning of the words substantial question of law and question of law and held that in order to admit the second appeal, what is required to be made out by the appellant being sine qua non for exercise of powers under Section 100 of the Code, is existence of substantial question of law arising in the case so as to empower the High Court to admit the appeal for final hearing by formulating such question. In the absence of any substantial question of law arising in appeal, the same merits dismissal in limine on the ground that the appeal does not involve any substantial question of law within the meaning of Section 100 of the Code. 16. Perusal of the impugned order shows that no such question was formulated except to note the submissions of learned counsel for the appellant that it so arises but not beyond that as to whether it actually arises and, if so, what is that question. 17. In the light of foregoing discussion and keeping in view the law laid down in the case of Santosh Hazari (supra), we are of the considered view that the impugned order is not legally sustainable and thus liable to be set aside. | 1[ds]16. Perusal of the impugned order shows that no such question was formulated except to note the submissions of learned counsel for the appellant that it so arises but not beyond that as to whether it actually arises and, if so, what is that question17. In the light of foregoing discussion and keeping in view the law laid down in the case of Santosh Hazari (supra), we are of the considered view that the impugned order is not legally sustainable and thus liable to be set aside. | 1 | 1,102 | 99 | ### 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:
Abhay Manohar Sapre, J. 1. This appeal is filed by defendant No.1 against the final judgment and order dated 30.12.2005 passed by the High Court of Judicature of Andhra Pradesh at Hyderabad in Second Appeal No. 743 of 2004 whereby the High Court allowed the second appeal filed by the plaintiff and set aside the judgment and decree dated 24.03.2004 passed by the Additional District Judge (FTC), Karimnagar in A.S. No. 34 of 1999 and confirmed the judgment and decree dated 26.03.1999 passed by the Principal Junior Civil Judge, Karimnagar in O.S. No. 338 of 1994. 2. We herein set out the facts, in brief, to appreciate the issue involved in this appeal. 3. The appellant herein is defendant No.1, respondent No.1 is the plaintiff (since dead) and respondent No. 2 is defendant No.3 (son of late defendant No.2) and respondent No.3 is the wife of defendant No.2. Defendant No.2 died during the pendency of the case before the High Court and his legal representative is respondent No.3 herein. 4. Respondent No.1-Plaintiff filed a suit for perpetual injunction against the defendants restraining them from interfering with the peaceful possession and enjoyment of the plaintiff in respect of land measuring 5 guntas and 7 sq. yds. (hereinafter referred to as suit land) in Survey No.1128/A situated at Mankanmathota in Karimnagar. 5. On 20.01.1995, the defendants filed written statement and denied the claim of the plaintiff. It was, inter alia, contended that the plaintiff is not the owner and possessor of suit land. 6. The Trial Court framed the issues and parties adduced their evidence. By judgment/decree dated 26.03.1999, the Trial Court decreed the suit in favour of the plaintiff. 7. Aggrieved by the said judgment/decree, the defendants filed first appeal being Appeal Suit No.34 of 1999 before the Additional District Judge (FTC), Karimnagar (A.P.). By judgment/decree dated 24.03.2004, the Additional District Judge allowed the first appeal, set aside the judgment/decree of the Trial Court and dismissed the suit. 8. Against the said judgment/decree, the plaintiff filed second appeal being S.A. No.743 of 2004 before the High Court. 9. The High Court, by the impugned judgment dated 13.12.2005, allowed the appeal and set aside the judgment/decree dated 24.03.2004 passed by the First Appellate Court in A.S. No.34 of 1999 and restored the judgment/decree dated 26.03.1999 passed by the Trial Court in O.S. No.338 of 1994 which had decreed the plaintiffs suit. 10. Felt aggrieved, defendant No.3 has filed this appeal by way of special leave before this Court. 11. Heard Mr. D. Mahesh Babu, learned counsel for the appellant. Nobody appears for the respondents. 12. Having heard the learned counsel for the appellant and on perusal of the record of the case, we are constrained to allow the appeal and while setting aside the impugned order, remand the case to the High Court for deciding the second appeal afresh in accordance with law as indicated below. 13. The reasons to remand the case to the High Court has occasioned because the High Court while allowing the second appeal filed by the plaintiff (respondent No.1 herein) did not frame any substantial question of law as is required to be framed at the time of admission of the second appeal and proceeded to allow the appeal filed by the plaintiff. 14. A three Judge Bench of this Court in Santosh Hazari v. Purushottam Tiwari (Deceased) by L.Rs., 2001(3) R.C.R.(Civil) 243 : (2001) 3 SCC 179 had examined the scope of Section 100 of the Code of the Civil Procedure, 1908 (hereinafter referred to as the Code). Justice R.C. Lahoti (as His Lordship then was) speaking for the Bench laid down the following proposition of law in Para 9: 9. The High Court cannot proceed to hear a second appeal without formulating the substantial question of law involved in the appeal and if it does so it acts illegally and in abnegation or abdication of the duty case on Court. The existence of substantial question of law is the sine qua non for the exercise of the jurisdiction under the amended Section 100 of the Code. (See Kshitish Chandra Purkait v. Santosh Kumar Purkait, 1997(3) R.C.R.(Civil) 197 : (1997) 5 SCC 438 Panchugopal Barua v. Umesh Chandra Goswami, 1997(2) R.C.R.(Civil) 1 : 1997(1) R.C.R.(Rent) 370 : (1997) 4 SCC 713 and Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, 1999(2) R.C.R.(Civil) 587 : (1999) 3 SCC 722.) 15. His Lordship then in Paras 10 to 14 succinctly explained the meaning of the words substantial question of law and question of law and held that in order to admit the second appeal, what is required to be made out by the appellant being sine qua non for exercise of powers under Section 100 of the Code, is existence of substantial question of law arising in the case so as to empower the High Court to admit the appeal for final hearing by formulating such question. In the absence of any substantial question of law arising in appeal, the same merits dismissal in limine on the ground that the appeal does not involve any substantial question of law within the meaning of Section 100 of the Code. 16. Perusal of the impugned order shows that no such question was formulated except to note the submissions of learned counsel for the appellant that it so arises but not beyond that as to whether it actually arises and, if so, what is that question. 17. In the light of foregoing discussion and keeping in view the law laid down in the case of Santosh Hazari (supra), we are of the considered view that the impugned order is not legally sustainable and thus liable to be set aside.
### Response:
1
### Explanation:
16. Perusal of the impugned order shows that no such question was formulated except to note the submissions of learned counsel for the appellant that it so arises but not beyond that as to whether it actually arises and, if so, what is that question17. In the light of foregoing discussion and keeping in view the law laid down in the case of Santosh Hazari (supra), we are of the considered view that the impugned order is not legally sustainable and thus liable to be set aside.
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STATE OF KARNATAKA Vs. A.B.MAHESHA ETC | R. BANUMATHI,J.1. The appeals by the State of Karnataka are against the acquittal of the respondents/accused.2. The case of the prosecution revolves around the following circumstances:- (i) deceased Jagdeesha was last seen alive in the Company of A1 to A3- respondents; (ii) recovery of Car having Registration No. MEC 8344 and (iii) recovery of material objects from the houses of accused – one golden chain (MO-8) at the behest of A1, one Rado watch (MO-6) at the behest of A2 and one golden ring (MO-7) at the behest of A3.3. The trial Court convicted all the accused under Section 302, 201, 392 and 397 IPC and sentenced to them, inter alia, to undergo life imprisonment. The High Court by the impugned judgment allowed the appeal and set aside the conviction and acquitted all the accused.4. We have heard Mr. V.N. Raghupathy, learned counsel appearing for the State of Karnataka and perused the impugned judgment and materials on record. In spite of service of notice none entered appearance on behalf of the respondents-accused.5. Insofar as the first circumstance that the deceased was last seen alive, the prosecution relies upon the testimony of P.Ws 5 and 6 who were also running the taxi at Chikkamagalur Car Stand. PW-5 stated that even though the accused wanted to engage his car, deceased Jagdeesha expressed his intention to go on hire as his wife’s house is in Thanneruhalla near Hasan so that he could go to the house of his in- laws where his wife was staying. Subsequently the body was found near the bridge on NH-48 near Kirisave Village on 08.05.2000. The body was found in a decomposed state on 08.05.2000. The evidence of PWs 5 and 6 is only limited to the extent that the deceased was last seen alive in the company of the accused.6. So far as the second circumstance - recovery of the car, prosecution relies upon the evidence of PW-4 (garage owner) and PW-20 S.I. of Gudlur Police Station (Tamil Nadu). In his evidence PW-4 (garage owner) has stated that the accused nos. 2 and 3 had left the car in his garage for repairs and for effecting repairs he issued quotation under Ex.P-6 on 09.05.2000. Contrarily, PW-20 S.I. of Gudlur Police Station has stated that the car was abandoned in front of “Hot and Cold Hotel” and he seized the car on 07.06.2000 and reported the matter to the Taluk Executive Magistrate. Insofar as the recovery of the car, the evidence of PW-4 (garage owner) and evidence of PW-20 S.I. of Gudlur Police Station are totally contradictory to each other and it is difficult to be reconciled. Pointing out the inconsistency in the evidence of PW-4 and PW-20, the High Court rightly held that the case of the prosecution is highly doubtful and this circumstance cannot form the basis for conviction.7. Insofar as the recovery of the material objects namely, gold chain (MO-8), Rado watch (MO-6) and golden ring (MO-7) recovered from the houses of the respective accused, they were identified by PW-3 (father of the deceased) on 18.06.2000; whereas as per version of the investigating officer they were recovered on 23.06.2000. Here again there is a material contradiction as to the recovery of the above material objects and also the identification of those material objects by PW-3. The High Court has pointed out that the inconsistent version between the evidence of I.O and PW-3 (father of the deceased) raises serious doubt about the alleged recovery and the case of the prosecution.8. Based on the above inconsistencies and contradictions when the High Court has acquitted the accused, this Court can not interfere with the acquittal unless there are serious and substantial error or compelling reasons warranting interference. We do not find any such serious infirmity in the judgment of the High Court warranting interference. | 0[ds]5. Insofar as the first circumstance that the deceased was last seen alive, the prosecution relies upon the testimony of P.Ws 5 and 6 who were also running the taxi at Chikkamagalur Car Stand.stated that even though the accused wanted to engage his car, deceased Jagdeesha expressed his intention to go on hire as hishouse is in Thanneruhalla near Hasan so that he could go to the house of his inlaws where his wife was staying. Subsequently the body was found near the bridge onnear Kirisave Village on 08.05.2000. The body was found in a decomposed state on 08.05.2000. The evidence of PWs 5 and 6 is only limited to the extent that the deceased was last seen alive in the company of the accused.6. So far as the second circumstancerecovery of the car, prosecution relies upon the evidence of(garage owner) andS.I. of Gudlur Police Station (Tamil Nadu). In his evidence(garage owner) has stated that the accused nos. 2 and 3 had left the car in his garage for repairs and for effecting repairs he issued quotation underon 09.05.2000. Contrarily,S.I. of Gudlur Police Station has stated that the car was abandoned in front ofand he seized the car on 07.06.2000 and reported the matter to the Taluk Executive Magistrate. Insofar as the recovery of the car, the evidence ofe owner) and20 S.I. of Gudlur Police Station are totally contradictory to each other and it is difficult to be reconciled. Pointing out the inconsistency in the evidence of0, the High Court rightly held that the case of the prosecution is highly doubtful and this circumstance cannot form the basis for conviction.7. Insofar as the recovery of the material objects namely, gold chainand golden ringrecovered from the houses of the respective accused, they were identified by(father of the deceased) on 18.06.2000; whereas as per version of the investigating officer they were recovered on 23.06.2000. Here again there is a material contradiction as to the recovery of the above material objects and also the identification of those material objects byThe High Court has pointed out that the inconsistent version between the evidence of I.O and(father of the deceased) raises serious doubt about the alleged recovery and the case of the prosecution.8. Based on the above inconsistencies and contradictions when the High Court has acquitted the accused, this Court can not interfere with the acquittal unless there are serious and substantial error or compelling reasons warranting interference. We do not find any such serious infirmity in the judgment of the High Court warranting interference. | 0 | 721 | 469 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
### Input:
R. BANUMATHI,J.1. The appeals by the State of Karnataka are against the acquittal of the respondents/accused.2. The case of the prosecution revolves around the following circumstances:- (i) deceased Jagdeesha was last seen alive in the Company of A1 to A3- respondents; (ii) recovery of Car having Registration No. MEC 8344 and (iii) recovery of material objects from the houses of accused – one golden chain (MO-8) at the behest of A1, one Rado watch (MO-6) at the behest of A2 and one golden ring (MO-7) at the behest of A3.3. The trial Court convicted all the accused under Section 302, 201, 392 and 397 IPC and sentenced to them, inter alia, to undergo life imprisonment. The High Court by the impugned judgment allowed the appeal and set aside the conviction and acquitted all the accused.4. We have heard Mr. V.N. Raghupathy, learned counsel appearing for the State of Karnataka and perused the impugned judgment and materials on record. In spite of service of notice none entered appearance on behalf of the respondents-accused.5. Insofar as the first circumstance that the deceased was last seen alive, the prosecution relies upon the testimony of P.Ws 5 and 6 who were also running the taxi at Chikkamagalur Car Stand. PW-5 stated that even though the accused wanted to engage his car, deceased Jagdeesha expressed his intention to go on hire as his wife’s house is in Thanneruhalla near Hasan so that he could go to the house of his in- laws where his wife was staying. Subsequently the body was found near the bridge on NH-48 near Kirisave Village on 08.05.2000. The body was found in a decomposed state on 08.05.2000. The evidence of PWs 5 and 6 is only limited to the extent that the deceased was last seen alive in the company of the accused.6. So far as the second circumstance - recovery of the car, prosecution relies upon the evidence of PW-4 (garage owner) and PW-20 S.I. of Gudlur Police Station (Tamil Nadu). In his evidence PW-4 (garage owner) has stated that the accused nos. 2 and 3 had left the car in his garage for repairs and for effecting repairs he issued quotation under Ex.P-6 on 09.05.2000. Contrarily, PW-20 S.I. of Gudlur Police Station has stated that the car was abandoned in front of “Hot and Cold Hotel” and he seized the car on 07.06.2000 and reported the matter to the Taluk Executive Magistrate. Insofar as the recovery of the car, the evidence of PW-4 (garage owner) and evidence of PW-20 S.I. of Gudlur Police Station are totally contradictory to each other and it is difficult to be reconciled. Pointing out the inconsistency in the evidence of PW-4 and PW-20, the High Court rightly held that the case of the prosecution is highly doubtful and this circumstance cannot form the basis for conviction.7. Insofar as the recovery of the material objects namely, gold chain (MO-8), Rado watch (MO-6) and golden ring (MO-7) recovered from the houses of the respective accused, they were identified by PW-3 (father of the deceased) on 18.06.2000; whereas as per version of the investigating officer they were recovered on 23.06.2000. Here again there is a material contradiction as to the recovery of the above material objects and also the identification of those material objects by PW-3. The High Court has pointed out that the inconsistent version between the evidence of I.O and PW-3 (father of the deceased) raises serious doubt about the alleged recovery and the case of the prosecution.8. Based on the above inconsistencies and contradictions when the High Court has acquitted the accused, this Court can not interfere with the acquittal unless there are serious and substantial error or compelling reasons warranting interference. We do not find any such serious infirmity in the judgment of the High Court warranting interference.
### Response:
0
### Explanation:
5. Insofar as the first circumstance that the deceased was last seen alive, the prosecution relies upon the testimony of P.Ws 5 and 6 who were also running the taxi at Chikkamagalur Car Stand.stated that even though the accused wanted to engage his car, deceased Jagdeesha expressed his intention to go on hire as hishouse is in Thanneruhalla near Hasan so that he could go to the house of his inlaws where his wife was staying. Subsequently the body was found near the bridge onnear Kirisave Village on 08.05.2000. The body was found in a decomposed state on 08.05.2000. The evidence of PWs 5 and 6 is only limited to the extent that the deceased was last seen alive in the company of the accused.6. So far as the second circumstancerecovery of the car, prosecution relies upon the evidence of(garage owner) andS.I. of Gudlur Police Station (Tamil Nadu). In his evidence(garage owner) has stated that the accused nos. 2 and 3 had left the car in his garage for repairs and for effecting repairs he issued quotation underon 09.05.2000. Contrarily,S.I. of Gudlur Police Station has stated that the car was abandoned in front ofand he seized the car on 07.06.2000 and reported the matter to the Taluk Executive Magistrate. Insofar as the recovery of the car, the evidence ofe owner) and20 S.I. of Gudlur Police Station are totally contradictory to each other and it is difficult to be reconciled. Pointing out the inconsistency in the evidence of0, the High Court rightly held that the case of the prosecution is highly doubtful and this circumstance cannot form the basis for conviction.7. Insofar as the recovery of the material objects namely, gold chainand golden ringrecovered from the houses of the respective accused, they were identified by(father of the deceased) on 18.06.2000; whereas as per version of the investigating officer they were recovered on 23.06.2000. Here again there is a material contradiction as to the recovery of the above material objects and also the identification of those material objects byThe High Court has pointed out that the inconsistent version between the evidence of I.O and(father of the deceased) raises serious doubt about the alleged recovery and the case of the prosecution.8. Based on the above inconsistencies and contradictions when the High Court has acquitted the accused, this Court can not interfere with the acquittal unless there are serious and substantial error or compelling reasons warranting interference. We do not find any such serious infirmity in the judgment of the High Court warranting interference.
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Chittaranjan Das Vs. The State Of Orissa | It was, according to the learned counsel, essential under Section 20, as it stood before the amendment, that the authority should be in respect of some specified individual offence. As notification dated December, 16, 1964 was issued before Act 37 of l954 was amended by Act 49 of 1964 and as the said notification gave a general authority to the Superintendent of Police, Vigilance, to give consent for instituting prosecutions for offences under the Act committed within the local limits of Cuttack Municipality, the said notification it is urged, was not in accordance with law.7. As against the above, Mr. Chatterjee on behalf of the State has argued that there is no infirmity in the notification dated December 16, 1964 and such a notification could have been validly issued under Section 20 of the Act, as it stood before the amendment. In our opinion there is force in the submission of Mr. Chatterjee.8. It would appear from what has been stated above that the short question which arises for consideration is whether it is permissible for the State Government or local authority under Section 20, as it stood before the amendment to give a general authority to a person to give consent to the institution of prosecutions for offences under the Act without mentioning a specified individual offence. We have reproduced above Section 20, as it stood before the amendment, and we find nothing in its language which makes it imperative to specify a particular offence in the order authorising a person to give consent to the institution of prosecution. The words "in this behalf" in the above provision, to which our attention has been invited, indicate that the authority conferred by the State Government or local authority upon a person should relate to the giving of written consent for institution of prosecutions for offences under the Act. It is difficult to spell out an inference from those words that the authority conferred upon a person under the above provision cannot be a general authority in respect of offences under the Act but must relate to some specified individual offence. If the interpretation sought to be placed upon the words "in this behalf" on behalf of the appellant were to be accepted, in such an event no general authority can be conferred even under sub-section (1) of Section 20, as amended by Act 49 of 1964, because even the amended section contains those words. The words "by general or special order" in the amended section in that event would become meaningless and lose all significance. It is, indeed, not disputed that under the amended section a general authority can be conferred upon a person for giving consent to the institution of prosecutions for offences under the Act. The words "in this behalf" in sub-section (1) of S. 20, as it existed before the amendment, as well as after the amendment must obviously carry the same meaning. If those words in the amended section do not postulate that the authority conferred by the State Government or local authority should have reference to a specified individual offence committed by a particular accused, we fail to understand as to how those words as used in the section before the amendment would carry a different connotation.9. Perusal of sub-section (1) of Section 20 of the Act, as it existed before the amendment, shows that the legislature had twofold object in enacting this provision. One object was to prevent institution of prosecutions for offences under the Act unless written consent to the institution of such prosecutions was given by the State Government or a local authority or a person authorised in this behalf by the State Government or local authority. The other object was to relieve the State Government or local authority of the necessity of applying its mind and dealing with each individual case of prosecution under the Act. Provision was accordingly made to enable the State Government or local authority to assign the function of giving written consent to some other person. In case the authority conferred by the State Government or local authority could not be general but had to relate to an individual offence, the very purpose of the latter part of sub-section (1) of Section 20 would be defeated, for it would in such an event become necessary for the State Government or local authority first to authorise a person to give written consent in respect of an individual case of prosecution and thereafter for the, person authorised to pass another order for giving the written consent. The result would be that what could be done in one step by the State Government or local authority by straightway giving its written consent would have to be done in two steps. It is difficult to accede to the contention that the above provision instead of simplifying the matter was intended to make it needlessly more cumbersome.10. The change made in S. 20 by Act 49 of l964 has now put the thing beyond any plea of controversy. Even without the change made in the section, the authority conferred by the State Government or local authority upon a person for giving the consent contemplated by the section, in our opinion, could be of general nature and it was not essential that the order authorising the person should have mentioned specified individual offences. The amendment made in this section had the effect of making more clear what was already contemplated by the section.11. The Madras High Court in the case of Corporation of Madras v. Arumugham, AIR 1966 Mad 194 the Mysore High Court in the case of Laxman Sitaram Pai v. The State of Mysore, AIR 1967 Mys 33 and the Andhra Pradesh High Court in the case of Public Prosecutor v. Thatha Rao. AIR 1968 Andh Pra 17 have all taken the view that a general authorisation to launch prosecutions under the Act is sufficient. For the reasons stated above, we agree with the view taken in the above three cases. | 0[ds]We have reproduced above Section 20, as it stood before the amendment, and we find nothing in its language which makes it imperative to specify a particular offence in the order authorising a person to give consent to the institution of prosecution. The words "in this behalf" in the above provision, to which our attention has been invited, indicate that the authority conferred by the State Government or local authority upon a person should relate to the giving of written consent for institution of prosecutions for offences under the Act. It is difficult to spell out an inference from those words that the authority conferred upon a person under the above provision cannot be a general authority in respect of offences under the Act but must relate to some specified individual offence. If the interpretation sought to be placed upon the words "in this behalf" on behalf of the appellant were to be accepted, in such an event no general authority can be conferred even under sub-section (1) of Section 20, as amended by Act 49 of 1964, because even the amended section contains those words. The words "by general or special order" in the amended section in that event would become meaningless and lose all significance. It is, indeed, not disputed that under the amended section a general authority can be conferred upon a person for giving consent to the institution of prosecutions for offences under the Act. The words "in this behalf" in sub-section (1) of S. 20, as it existed before the amendment, as well as after the amendment must obviously carry the same meaning. If those words in the amended section do not postulate that the authority conferred by the State Government or local authority should have reference to a specified individual offence committed by a particular accused, we fail to understand as to how those words as used in the section before the amendment would carry a different connotation.The change made in S. 20 by Act 49 of l964 has now put the thing beyond any plea of controversy. Even without the change made in the section, the authority conferred by the State Government or local authority upon a person for giving the consent contemplated by the section, in our opinion, could be of general nature and it was not essential that the order authorising the person should have mentioned specified individual offences. The amendment made in this section had the effect of making more clear what was already contemplated by the section.11. The Madras High Court in the case of Corporation of Madras v. Arumugham, AIR 1966 Mad 194 the Mysore High Court in the case of Laxman Sitaram Pai v. The State of Mysore, AIR 1967 Mys 33 and the Andhra Pradesh High Court in the case of Public Prosecutor v. Thatha Rao. AIR 1968 Andh Pra 17 have all taken the view that a general authorisation to launch prosecutions under the Act is sufficient. For the reasons stated above, we agree with the view taken in the above three cases. | 0 | 2,367 | 556 | ### 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:
It was, according to the learned counsel, essential under Section 20, as it stood before the amendment, that the authority should be in respect of some specified individual offence. As notification dated December, 16, 1964 was issued before Act 37 of l954 was amended by Act 49 of 1964 and as the said notification gave a general authority to the Superintendent of Police, Vigilance, to give consent for instituting prosecutions for offences under the Act committed within the local limits of Cuttack Municipality, the said notification it is urged, was not in accordance with law.7. As against the above, Mr. Chatterjee on behalf of the State has argued that there is no infirmity in the notification dated December 16, 1964 and such a notification could have been validly issued under Section 20 of the Act, as it stood before the amendment. In our opinion there is force in the submission of Mr. Chatterjee.8. It would appear from what has been stated above that the short question which arises for consideration is whether it is permissible for the State Government or local authority under Section 20, as it stood before the amendment to give a general authority to a person to give consent to the institution of prosecutions for offences under the Act without mentioning a specified individual offence. We have reproduced above Section 20, as it stood before the amendment, and we find nothing in its language which makes it imperative to specify a particular offence in the order authorising a person to give consent to the institution of prosecution. The words "in this behalf" in the above provision, to which our attention has been invited, indicate that the authority conferred by the State Government or local authority upon a person should relate to the giving of written consent for institution of prosecutions for offences under the Act. It is difficult to spell out an inference from those words that the authority conferred upon a person under the above provision cannot be a general authority in respect of offences under the Act but must relate to some specified individual offence. If the interpretation sought to be placed upon the words "in this behalf" on behalf of the appellant were to be accepted, in such an event no general authority can be conferred even under sub-section (1) of Section 20, as amended by Act 49 of 1964, because even the amended section contains those words. The words "by general or special order" in the amended section in that event would become meaningless and lose all significance. It is, indeed, not disputed that under the amended section a general authority can be conferred upon a person for giving consent to the institution of prosecutions for offences under the Act. The words "in this behalf" in sub-section (1) of S. 20, as it existed before the amendment, as well as after the amendment must obviously carry the same meaning. If those words in the amended section do not postulate that the authority conferred by the State Government or local authority should have reference to a specified individual offence committed by a particular accused, we fail to understand as to how those words as used in the section before the amendment would carry a different connotation.9. Perusal of sub-section (1) of Section 20 of the Act, as it existed before the amendment, shows that the legislature had twofold object in enacting this provision. One object was to prevent institution of prosecutions for offences under the Act unless written consent to the institution of such prosecutions was given by the State Government or a local authority or a person authorised in this behalf by the State Government or local authority. The other object was to relieve the State Government or local authority of the necessity of applying its mind and dealing with each individual case of prosecution under the Act. Provision was accordingly made to enable the State Government or local authority to assign the function of giving written consent to some other person. In case the authority conferred by the State Government or local authority could not be general but had to relate to an individual offence, the very purpose of the latter part of sub-section (1) of Section 20 would be defeated, for it would in such an event become necessary for the State Government or local authority first to authorise a person to give written consent in respect of an individual case of prosecution and thereafter for the, person authorised to pass another order for giving the written consent. The result would be that what could be done in one step by the State Government or local authority by straightway giving its written consent would have to be done in two steps. It is difficult to accede to the contention that the above provision instead of simplifying the matter was intended to make it needlessly more cumbersome.10. The change made in S. 20 by Act 49 of l964 has now put the thing beyond any plea of controversy. Even without the change made in the section, the authority conferred by the State Government or local authority upon a person for giving the consent contemplated by the section, in our opinion, could be of general nature and it was not essential that the order authorising the person should have mentioned specified individual offences. The amendment made in this section had the effect of making more clear what was already contemplated by the section.11. The Madras High Court in the case of Corporation of Madras v. Arumugham, AIR 1966 Mad 194 the Mysore High Court in the case of Laxman Sitaram Pai v. The State of Mysore, AIR 1967 Mys 33 and the Andhra Pradesh High Court in the case of Public Prosecutor v. Thatha Rao. AIR 1968 Andh Pra 17 have all taken the view that a general authorisation to launch prosecutions under the Act is sufficient. For the reasons stated above, we agree with the view taken in the above three cases.
### Response:
0
### Explanation:
We have reproduced above Section 20, as it stood before the amendment, and we find nothing in its language which makes it imperative to specify a particular offence in the order authorising a person to give consent to the institution of prosecution. The words "in this behalf" in the above provision, to which our attention has been invited, indicate that the authority conferred by the State Government or local authority upon a person should relate to the giving of written consent for institution of prosecutions for offences under the Act. It is difficult to spell out an inference from those words that the authority conferred upon a person under the above provision cannot be a general authority in respect of offences under the Act but must relate to some specified individual offence. If the interpretation sought to be placed upon the words "in this behalf" on behalf of the appellant were to be accepted, in such an event no general authority can be conferred even under sub-section (1) of Section 20, as amended by Act 49 of 1964, because even the amended section contains those words. The words "by general or special order" in the amended section in that event would become meaningless and lose all significance. It is, indeed, not disputed that under the amended section a general authority can be conferred upon a person for giving consent to the institution of prosecutions for offences under the Act. The words "in this behalf" in sub-section (1) of S. 20, as it existed before the amendment, as well as after the amendment must obviously carry the same meaning. If those words in the amended section do not postulate that the authority conferred by the State Government or local authority should have reference to a specified individual offence committed by a particular accused, we fail to understand as to how those words as used in the section before the amendment would carry a different connotation.The change made in S. 20 by Act 49 of l964 has now put the thing beyond any plea of controversy. Even without the change made in the section, the authority conferred by the State Government or local authority upon a person for giving the consent contemplated by the section, in our opinion, could be of general nature and it was not essential that the order authorising the person should have mentioned specified individual offences. The amendment made in this section had the effect of making more clear what was already contemplated by the section.11. The Madras High Court in the case of Corporation of Madras v. Arumugham, AIR 1966 Mad 194 the Mysore High Court in the case of Laxman Sitaram Pai v. The State of Mysore, AIR 1967 Mys 33 and the Andhra Pradesh High Court in the case of Public Prosecutor v. Thatha Rao. AIR 1968 Andh Pra 17 have all taken the view that a general authorisation to launch prosecutions under the Act is sufficient. For the reasons stated above, we agree with the view taken in the above three cases.
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Parmanand And Others Vs. Ganpatrao And Others | cannot be held to be invalid, Mr. Masodkar relied on a decision of the Privy Council in Rewa Mahton v. Ram Kishen Singh((1886) L. R. 13 I. A. 106.). In that case, the Privy Council was dealing with a question which had reference to the true construction of s. 246 of the Civil Procedure Code of 1877 (Act X of 1877). The said section had provided that if cross decrees between the same parties and for the payment of money be produced in the Court, execution shall be taken out only by the party who holds the decree for the larger sum, and for so much only as remains after deducting the smaller sum. It appears that contrary to the provisions of this section, an auction sale was held and when the title of the auction-purchaser was challenged, it became necessary to consider that the effect of noncompliance with the provisions of s. 246 would be on the title of the auction-purchaser. The Privy Council held that a purchaser under a sale in execution is not bound to inquire whether the judgment debtor had a cross judgment of a higher amount such as would have rendered the order for execution incorrect. If the Court has jurisdiction, such purchaser is no more bound to inquire into the correctness of an order for execution than he is as to the correctness of the judgment upon which execution issues. In other words, the effect of this decision is that if in contravention of the provisions of s. 246 an executing Court orders a sale to be held, the auction-purchaser gets a good title notwithstanding non-compliance with s. 246. We do not see how this case can assist Mr. Masodkar in the present appeal. The decision turned upon the construction of s. 246. But the present dispute has to be decided on a construction of s. 149 (2). It is well known that execution sales held under the Code of Civil Procedure can be challenged only in the manner prescribed and for the reasons specified, say, for instance, by O. XXI r. 89, 90 and 91. The fact that certain irregularities committed during the conduct of execution sales would not render the sales invalid, flows from the relevant provisions of the Code and so, it would not be reasonable to invoke the assistance of the decisions dealing with irregularities committed in execution sales in support of the argument that a revenue sale held under s. 128 (f) should be judged by the same principles. The question as to whether the revenue sale is valid or not must obviously be determined in the light of the relevant provisions of the Act and that again takes us to the construction of s. 149 (2).Mr. Masodkar had also relied on the decision of the Calcutta High Court in Ram Prosad Choudhury v. Ram Jadu Lahiri ((1936) 40 C.W.N. 1054.) in support of his argument that a revenue sale held under s. 128 (f) of the Act would not be rendered invalid merely because the amount of arrears shown in the proclamation is not accurate. In the case of Ram Prosad Choudhury, the sale had been held under the provisions of the Bengal Land Revenue Sales Act (Act XI of 1859). Under s. 5 of the said Act, notice had to be issued before the sale could be held. In the notice. issued prior to the sale had been shown a sum which had then not become due as an arrear along with other sums which had become arrears, and the subsequent sale was held on the footing of the total amount thus shown being the arrears due. It was urged that the sale was invalid because of the irregularity committed in the issue of the notice under s. 5. This argument was rejected and it was held that despite the said irregularity, the sale was valid. Now, in appreciating the effect of this decision it is necessary to refer to the provisions of s. 33 of the said Act under which the sale was challenged. We have already referred to the fact that s. 5 required a notice to be issued prior to the sale. The notice provided for by this section had to specify the nature and amount of arrear or demand, and the latest date on which payment thereof shall be received. Section 33 provides that no sale for arrears of revenue shall be annulled, except upon the ground of its having been made contrary to the provisions of this Act, and then only on proof that the plaintiff has sustained substantial injury by reason of the irregularity complained of; with the rest of the section we are not concerned. The argument which was urged in the case of Ram Prosad Choudhury was that the notice under s. 5 having been irregularly issued, the sale should be deemed to have been held contrary to the provisions of the said Act, and this argument was not accepted. It would be noticed that s. 33 justifies a claim for annulling the sale only if two conditions are satisfied; that the sale should have been made contrary to the provisions of the Act and that the plaintiff must show that he has sustained substantial injury by reason of the irregularity complained of. It is in the context of these requirements that the Calcutta High Court held that the inclusion of an amount in the notice which had not become an arrear on the date of the notice did not render the impugned sale invalid. We do not think that this decision can assist us in interpreting s. 149 (2) with which we are concerned. The scope and effect of the relevant provisions of s. 149(2) are not at all similar to the scope and effect of s.33 of the Bengal Act. Therefore, we are not inclined to accept Mr. Masodkars argument that the defect in the sale on which the appellants rely would not render the sale invalid. | 1[ds]It would thus be seen that the scheme of the relevant provisions of the Act in relation to revenue sales appears to be self-contained. The revenue process for recovering arrears begins with the report as to the arrears and ends with the confirmation of sale. Provision is made for the examination of claims of third parties as well as for setting aside sales on account of deposit or on account of irregularities committed in conducting the sales., It is in the light of this self-contained scheme that s. 149 (1) provides that if no application under s. 146 is made within the time prescribed, all claims on the grounds of irregularity or mistake shall be barred. In other. words. the effect of this provision is that if a party aggrieved by a revenue sale of his property wants to challenge the validity of the said sale on grounds of irregularity or mistake, the Act has provided a remedy for him by s.146 and it he fails to avail himself of that remedy, it would not be open to him to challenge the impugned sale on the said grounds by a separate suit. The grounds of irregularity or mistake must be urged by an application made under s. 146 and if no such application is made, then the party is precluded from taking the said grounds otherwise. Thus far there is no difficulty or disputeThe effect of this provision is that if fraud is proved in regard to a revenue sale, a suit will lie and the sale will be set aside; similarly, if it is shown that the arrear for which the property is sold was not due, a suit will lie and the sale will be set aside. There is no difficulty or dispute about this position also.The question on which the parties are at issue before us is in regard to the interpretation of the clause "the arrear for which the property is sold." It has been held by the High Court that what this clause requires is not that the arrear for which the property is sold should be stated with meticulous accuracy, if a mistake is made in showing the actual amount of arrear due from the defaulter for which the property is sold, that mistake would not render the sale invalid; it would be a mistake within the meaning of ss.(1) and so, to cases of that kind sub-section (2) will not applyIn construing s. 149(2) it is relevant to remember that the provision in question is made in relation to revenue sales and there is no doubt that the revenue sales are authorised to be held under the summary procedure prescribed by the relevant sections of the Act, and so, it would not be unreasonable to construe these provisions strictly. That is why we are not inclined to accept the view that in interpreting the relevant clause, we should assume that the Legislature did not expect the authorities to specify the arrear for which the property is sold with meticulous care. If the defaulters property is being sold under revenue sale and the object of issuing the proclamation is to show for what arrear it is being sold, it is, we think, fair to assume that the said arrear must be stated with absolute accuracy. It would not be enough to say that some arrear was due and so, the sale should be upheld though it was purported to be held for recovery of a much larger arrear.Nor is this consideration purely academic. As we have seen, s. 143 provides that if the arrear in respect of which the property is to be sold is paid before the lot is knocked down, the sale shall be stayed. In the present case, if the arrear had been properly shown at Rs. 730113/-, it is theoretically possible that the appellants may have been in a position to deposit this amount before the lot was knocked down and the sale would have been stayed. Since the arrear was shown to be much larger, it is theoretically possible that the appellants could not make a successful attempt to deposit the said amount. Now, in working out the provisions of s. 143, there should be no difficulty in determining the amount which the defaulter has to deposit to avoid the revenue sale. The arrear in question must be correctly stated in the proclamation so that everybody concerned knows the exact amount for which the revenue sale is heldThe only provision which has been cited before us in that behalf is s. 143 and s. 143 expressly provides for the payment of the whole of the arrear due and lays down that on such payment before the lot is knocked down, the sale shall be stayed. Therefore, the complication sought to be introduced by Mr. Masodkar by taking a hypothetical case of a part payment of the arrears due from the defaulter, does not affect the construction of s. 149(2).It is then argued that the impugned sale cannot be said to be irregular in the present case, because on the date when it was, actually held, the amount of Rs. 1, 354 /9/- was in fact due from the appellants as arrears. It is common ground that after the proclamation was issued, a further amount of arrears became due from the appellants and on the date of the sale, the total amount came to be Rs. 1, 354/9/-. In our opinion, arrears accumulating. after an order for sale has been passed and the proclamation in that behalf has been issued, cannot come into the calculation while construing s.149 (2). Every arrear for which the sale is ordered must be specifically dealt with as provided by the Act. It is not open to the authorities to deal with a specific arrear as prescribed by the Act and to pass an order for sale of the defaulters property on the basis of that arrear and then add to it subsequently accruing arrears without following the procedure prescribed in that behalf. Once the amount of arrear is determined and sale is ordered by reference to it, it is that amount which must be shown in the proclamation and it is for that amount of arrear for which the property must be sold. That, in our opinion, is clearly the effect of the relevant clause in s. 149 (2). We must, therefore, hold that the High Court was in error in coming to the conclusion that the sale of the appellants property on the 27th February, 1941 was valid. We are satisfied that the arrear for which the appellants property was sold was not due within the meaning of s.149 (2), and so, the sale must be set asideWe have already referred to the fact that s. 5 required a notice to be issued prior to the sale. The notice provided for by this section had to specify the nature and amount of arrear or demand, and the latest date on which payment thereof shall be received. Section 33 provides that no sale for arrears of revenue shall be annulled, except upon the ground of its having been made contrary to the provisions of this Act, and then only on proof that the plaintiff has sustained substantial injury by reason of the irregularity complained of; with the rest of the section we are not concerned. The argument which was urged in the case of Ram Prosad Choudhury was that the notice under s. 5 having been irregularly issued, the sale should be deemed to have been held contrary to the provisions of the said Act, and this argument was not accepted. It would be noticed that s. 33 justifies a claim for annulling the sale only if two conditions are satisfied; that the sale should have been made contrary to the provisions of the Act and that the plaintiff must show that he has sustained substantial injury by reason of the irregularity complained of. It is in the context of these requirements that the Calcutta High Court held that the inclusion of an amount in the notice which had not become an arrear on the date of the notice did not render the impugned sale invalid. We do not think that this decision can assist us in interpreting s. 149 (2) with which we are concerned. The scope and effect of the relevant provisions of s. 149(2) are not at all similar to the scope and effect of s.33 of the Bengal Act. Therefore, we are not inclined to accept Mr. Masodkars argument that the defect in the sale on which the appellants rely would not render the sale invalid. | 1 | 4,176 | 1,574 | ### Instruction:
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cannot be held to be invalid, Mr. Masodkar relied on a decision of the Privy Council in Rewa Mahton v. Ram Kishen Singh((1886) L. R. 13 I. A. 106.). In that case, the Privy Council was dealing with a question which had reference to the true construction of s. 246 of the Civil Procedure Code of 1877 (Act X of 1877). The said section had provided that if cross decrees between the same parties and for the payment of money be produced in the Court, execution shall be taken out only by the party who holds the decree for the larger sum, and for so much only as remains after deducting the smaller sum. It appears that contrary to the provisions of this section, an auction sale was held and when the title of the auction-purchaser was challenged, it became necessary to consider that the effect of noncompliance with the provisions of s. 246 would be on the title of the auction-purchaser. The Privy Council held that a purchaser under a sale in execution is not bound to inquire whether the judgment debtor had a cross judgment of a higher amount such as would have rendered the order for execution incorrect. If the Court has jurisdiction, such purchaser is no more bound to inquire into the correctness of an order for execution than he is as to the correctness of the judgment upon which execution issues. In other words, the effect of this decision is that if in contravention of the provisions of s. 246 an executing Court orders a sale to be held, the auction-purchaser gets a good title notwithstanding non-compliance with s. 246. We do not see how this case can assist Mr. Masodkar in the present appeal. The decision turned upon the construction of s. 246. But the present dispute has to be decided on a construction of s. 149 (2). It is well known that execution sales held under the Code of Civil Procedure can be challenged only in the manner prescribed and for the reasons specified, say, for instance, by O. XXI r. 89, 90 and 91. The fact that certain irregularities committed during the conduct of execution sales would not render the sales invalid, flows from the relevant provisions of the Code and so, it would not be reasonable to invoke the assistance of the decisions dealing with irregularities committed in execution sales in support of the argument that a revenue sale held under s. 128 (f) should be judged by the same principles. The question as to whether the revenue sale is valid or not must obviously be determined in the light of the relevant provisions of the Act and that again takes us to the construction of s. 149 (2).Mr. Masodkar had also relied on the decision of the Calcutta High Court in Ram Prosad Choudhury v. Ram Jadu Lahiri ((1936) 40 C.W.N. 1054.) in support of his argument that a revenue sale held under s. 128 (f) of the Act would not be rendered invalid merely because the amount of arrears shown in the proclamation is not accurate. In the case of Ram Prosad Choudhury, the sale had been held under the provisions of the Bengal Land Revenue Sales Act (Act XI of 1859). Under s. 5 of the said Act, notice had to be issued before the sale could be held. In the notice. issued prior to the sale had been shown a sum which had then not become due as an arrear along with other sums which had become arrears, and the subsequent sale was held on the footing of the total amount thus shown being the arrears due. It was urged that the sale was invalid because of the irregularity committed in the issue of the notice under s. 5. This argument was rejected and it was held that despite the said irregularity, the sale was valid. Now, in appreciating the effect of this decision it is necessary to refer to the provisions of s. 33 of the said Act under which the sale was challenged. We have already referred to the fact that s. 5 required a notice to be issued prior to the sale. The notice provided for by this section had to specify the nature and amount of arrear or demand, and the latest date on which payment thereof shall be received. Section 33 provides that no sale for arrears of revenue shall be annulled, except upon the ground of its having been made contrary to the provisions of this Act, and then only on proof that the plaintiff has sustained substantial injury by reason of the irregularity complained of; with the rest of the section we are not concerned. The argument which was urged in the case of Ram Prosad Choudhury was that the notice under s. 5 having been irregularly issued, the sale should be deemed to have been held contrary to the provisions of the said Act, and this argument was not accepted. It would be noticed that s. 33 justifies a claim for annulling the sale only if two conditions are satisfied; that the sale should have been made contrary to the provisions of the Act and that the plaintiff must show that he has sustained substantial injury by reason of the irregularity complained of. It is in the context of these requirements that the Calcutta High Court held that the inclusion of an amount in the notice which had not become an arrear on the date of the notice did not render the impugned sale invalid. We do not think that this decision can assist us in interpreting s. 149 (2) with which we are concerned. The scope and effect of the relevant provisions of s. 149(2) are not at all similar to the scope and effect of s.33 of the Bengal Act. Therefore, we are not inclined to accept Mr. Masodkars argument that the defect in the sale on which the appellants rely would not render the sale invalid.
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prescribed by the relevant sections of the Act, and so, it would not be unreasonable to construe these provisions strictly. That is why we are not inclined to accept the view that in interpreting the relevant clause, we should assume that the Legislature did not expect the authorities to specify the arrear for which the property is sold with meticulous care. If the defaulters property is being sold under revenue sale and the object of issuing the proclamation is to show for what arrear it is being sold, it is, we think, fair to assume that the said arrear must be stated with absolute accuracy. It would not be enough to say that some arrear was due and so, the sale should be upheld though it was purported to be held for recovery of a much larger arrear.Nor is this consideration purely academic. As we have seen, s. 143 provides that if the arrear in respect of which the property is to be sold is paid before the lot is knocked down, the sale shall be stayed. In the present case, if the arrear had been properly shown at Rs. 730113/-, it is theoretically possible that the appellants may have been in a position to deposit this amount before the lot was knocked down and the sale would have been stayed. Since the arrear was shown to be much larger, it is theoretically possible that the appellants could not make a successful attempt to deposit the said amount. Now, in working out the provisions of s. 143, there should be no difficulty in determining the amount which the defaulter has to deposit to avoid the revenue sale. The arrear in question must be correctly stated in the proclamation so that everybody concerned knows the exact amount for which the revenue sale is heldThe only provision which has been cited before us in that behalf is s. 143 and s. 143 expressly provides for the payment of the whole of the arrear due and lays down that on such payment before the lot is knocked down, the sale shall be stayed. Therefore, the complication sought to be introduced by Mr. Masodkar by taking a hypothetical case of a part payment of the arrears due from the defaulter, does not affect the construction of s. 149(2).It is then argued that the impugned sale cannot be said to be irregular in the present case, because on the date when it was, actually held, the amount of Rs. 1, 354 /9/- was in fact due from the appellants as arrears. It is common ground that after the proclamation was issued, a further amount of arrears became due from the appellants and on the date of the sale, the total amount came to be Rs. 1, 354/9/-. In our opinion, arrears accumulating. after an order for sale has been passed and the proclamation in that behalf has been issued, cannot come into the calculation while construing s.149 (2). Every arrear for which the sale is ordered must be specifically dealt with as provided by the Act. It is not open to the authorities to deal with a specific arrear as prescribed by the Act and to pass an order for sale of the defaulters property on the basis of that arrear and then add to it subsequently accruing arrears without following the procedure prescribed in that behalf. Once the amount of arrear is determined and sale is ordered by reference to it, it is that amount which must be shown in the proclamation and it is for that amount of arrear for which the property must be sold. That, in our opinion, is clearly the effect of the relevant clause in s. 149 (2). We must, therefore, hold that the High Court was in error in coming to the conclusion that the sale of the appellants property on the 27th February, 1941 was valid. We are satisfied that the arrear for which the appellants property was sold was not due within the meaning of s.149 (2), and so, the sale must be set asideWe have already referred to the fact that s. 5 required a notice to be issued prior to the sale. The notice provided for by this section had to specify the nature and amount of arrear or demand, and the latest date on which payment thereof shall be received. Section 33 provides that no sale for arrears of revenue shall be annulled, except upon the ground of its having been made contrary to the provisions of this Act, and then only on proof that the plaintiff has sustained substantial injury by reason of the irregularity complained of; with the rest of the section we are not concerned. The argument which was urged in the case of Ram Prosad Choudhury was that the notice under s. 5 having been irregularly issued, the sale should be deemed to have been held contrary to the provisions of the said Act, and this argument was not accepted. It would be noticed that s. 33 justifies a claim for annulling the sale only if two conditions are satisfied; that the sale should have been made contrary to the provisions of the Act and that the plaintiff must show that he has sustained substantial injury by reason of the irregularity complained of. It is in the context of these requirements that the Calcutta High Court held that the inclusion of an amount in the notice which had not become an arrear on the date of the notice did not render the impugned sale invalid. We do not think that this decision can assist us in interpreting s. 149 (2) with which we are concerned. The scope and effect of the relevant provisions of s. 149(2) are not at all similar to the scope and effect of s.33 of the Bengal Act. Therefore, we are not inclined to accept Mr. Masodkars argument that the defect in the sale on which the appellants rely would not render the sale invalid.
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Aluminium Corporation Of India Ltd Vs. Union Of India & Ors | case that from April 25, 1960 all the finished goods cleared by Excise officials had been subjected to Rs. 500/- per MT of duty. 10. The above facts make out, fool-proof fashion, that the entire 649 odd MT of slabs had been transformed into sheets and the like. If the latter had been cleared on payment of excise at Rs. 500/- per MT - and it is admitted to have been so done - it follows that the levy was excessive to the tune of Rs. 300/- per MT as the notification granting exemption on April 20, 1960 had reduced the levy in such cases to Rs. 200/- per MT. 11. This almost inescapable conclusion was sought to be countered by Shri Sanghi in a strenuous but unsuccessful submission which had appealed to the Central Govt. in its order D/- 21-8-67. The reasoning, only to be stated to be rejected, urged was that only if the sheets, circles, etc., had been manufactured wholly and solely out of duty paid slabs could the exemption be enjoyed. This condition of eligibility for concessional rate of duty is beyond the notification altogether and perhaps beyond reason. True the order of Government in revision, rejecting the refund claim states this as the solitary ground. We quote the relevant portion : As the wordings of the notification would go to show, the concessional rate of Rs. 200/- per MT was applicable only to those Aluminium manufactures, which were made out of duty paid aluminium in any crude form; this would evidently not cover aluminium manufactures made partly out of duty paid and partly out of non-duty paid crude. We wonder where the author of this order discovers in the statutory notification the exclusion from exemption altogether manufactures partly out of duty paid and partly out of non-duty paid crude. If 99 per cent of duty paid crude were used for manufacture of sheets, etc., should the final product be exigible to tax at Rs. 500/- per MT ? Would it not virtually mean that merely because a bit of non-duty paid crude were mixed the party is penalised by payment of Rs. 800/- per MT ? An odd and unreasonable result ! Shri Sanghi for the respondent rightly asked whether a manufacturer who used 1 per cent duty paid and 99 per cent non-duty paid slabs in producing sheets can get away with it from liability for duty at the rate of Rs. 500/- ? No, not at all. Such an assessee will get the benefit of the concessional rate (shall we call it rebate ?) only to the extent of the 1 per cent and will be subject to full payment at Rs. 500/- for the rest. If the mathematical facts are undisputed, the factual conclusion is irrefutable. Of course, had there been failure on the part of the assessee to keep the statutory stock registers or otherwise his figures were suspicious the Collector of Excise could and would, ordinarily without fear of judicial interference, work out how much of the raw material had borne duty already. Here the facts are free from dispute and the respondent does not even hint at the possibility of a part of the gross mass of 649.5620 MT which had been already dutied at the slab stage (some of which had been shed but reverted to the scrap state in the inevitable process of manufacture and had been thrown, as fresh raw material, into the on-going cyclic movement of re-creation of final products) had been sold away at that intermediate level. On that footing, the appellant was entitled to pro tanto remission as explained above. Both sides are at one that after April 24, 1960 excise clearance of finished aluminium products was granted to the appellant on the single point levy system at Rs. 500/- per MT. 12. The marginal mystique in interpretation has arisen from misunderstanding the spirit and letter of the notification where it reads : the virgin metal on which the appropriate Excise Duty has been paid from so much of the duty leviable thereon as is in excess of Rs. 200.00 per metric tonne. There is no need to go down to the order of the Collector of Excise and examine his reasons because it is somewhat obscure and sheds no more light on the issue before us. 13. To return what has been taken wrongly is as much a duty and grace of government as to levy relentlessly and fully what is due. Default in either, not altogether unfamiliar, brings down the confidence of the community in the Administration. That a party should have been put to two expensive and elongated litigations to recover a relatively small sum is regrettable. 14. Assuming that the tax officers have an alibi of two interpretations of the given notification, the question is whether plainer use of language is an art beyond the draftsmans skill ? We think not. To liquidate obscurity in legislative language, by abandoning obsolescent vocabulary and style of expression is an overdue measure if we remember the Renton Committees observations made for British consumers but applies a fortiori to our Republic : There is hardly any part of our national life or of our personal lives that is not affected by one statute or another. The affairs of local authorities, nationalised industries, public corporations and private commerce are regulated by legislation. The life of the ordinary citizen is affected by various provisions of the statute books from cradle to grave. The rule of law is the conrerstone of democracy and how can there be a rule of law society if the members, the bulk of whom are too poor to buy legal services, cannot decode the legislators law and therefore obey it ? 15. Incomprehensible law annoys the Administration and estranges the citizen at a time when quick justice and less sterile litigation are the desiderata. The command of the Law can claim the allegiance of the lay only by simplicity in legislation. | 1[ds]3. If we may anticipate our ultimate conclusion even at the opening stage, this appeal deserves to be allowed as a matter of law, but what is more significant for society are three unhappy features which, we feel confident, the State will seriously consider. They are : (a) that good government involves not only diligent collection of taxes, but also ready refunds of excess levies; (b) that simplicity or easy comprehensibility in drafting legislation, including rules and notifications affecting the laity, is an art found absent, although not difficult to accomplish, given a fresh approach to use of statutory language; and (c) that a fair construction - not always one adverse to the assessee - is permissible and proper on the part of Government and the taxing officers when enforcing fiscal legislation.6. There was avoidable complication experienced in the enforcement of the two-tier system of duty and on the representation of the concerned composite manufacturers, the Government of India switched over to a single point levy at the ultimate stage of the manufacture and, in that behalf, issued an exemption notification on the meaning of which the parties have joined issue before us.Notwithstanding the stilted style of the notification, it is, to our mind, clear that what the Central Government intended and effected by this notification was to fix the rate of levy at Rs. 500/- for the fully manufactured aluminium products, thus making up for the levy at the rate of Rs. 300/- at an intermediate stage. But these composite mills which made both half-manufactured and fully manufactured items had to be granted exemption in cases where the half-manufactured items had went into further stages of manufacture after they had suffered duty. The whole scheme of the exemption, as we see it, is that where ingots, bars, blocks, slabs, billets, shots, and pellets made out of aluminium scrap or scrap obtained from the virgin metal on which excise duty has already been paid, are used for making finished items like sheets, there should be a reduction pro tanto in the rate of duty leviable on the final product. Thereby the manufacturer would have paid Rs. 300/- for the items at the intermediate stage of manufacture and if such items were used up in the later stages of manufacturing finished goods, he would get concession to that extent by being charged Rs. 200/- per metric tonne7. We have earlier pointed out that one of the features of the manufacturing process is that when ingots, bars and the like are used for manufacturing plates, sheets, circles, etc., nearly 50 per cent of the former become scrap and have to be melted and recycled over again. Taking note of the fact that this 50 per cent deteriorates into scrap, although it has suffered duty as ingot, bar or block, the exemption notification included scrap metal which has suffered tax as qualifying for the concessional rate of Rs. 200/- when it eventually went into the manufacture of the final products viz, plates, sheets, circles, etc. Once we understand this commonsense view, which fits in with fairness and law as expressed in the language of the notification, the resolution of the conflicting contentions becomes easy, since, on the facts, there is no dispute8. We will now proceed to a statement of the relevant circumstances which invited the application of the exemption notification. The official materials before us establish beyond doubt and so no serious difference between the parties is discernible - that from March 1, 1960 to April 24, 1960 aluminium slabs which had suffered duty on semifinished manufacture was 649.5620 MT. From this quantity of slabs, sheets, strips and circles amounting to 283.2925 MT were manufactured, of which 188.7336 MT were cleared by payment of duty at the rate of Rs. 200/- per MT. 1.0490 MT of sheets and strips was eligible to be cleared free of duty being for purpose of electrolysis which was duty-free. By simple arithmetic worked out by the Collector of Central Excise and forwarded to the Central Government (Annexure E), the balance of stock of finished goods manufactured out of duty paid slabs as on April 25, 1960 was 93.5099 MT. This quantity was actually cleared on payment of duty at the rate of Rs. 500/- per MT. But having been made out of duty paid slabs the exemption notification applied and only Rs. 200/- per MT was payable. Thus the excess collected i.e., Rs. 300/- per MT was refundable. So obvious. And yet it took an appeal to this Court (C.A. No. 635 of 1964) and a direction for reconsideration before the Central Government would reluctantly consent to refund as per order D/- 21-8-1967. There is no surviving dispute on this matter.This was natural, as the manufacture of sheets, circles, etc., out of slabs involved degradation of about 50 per cent into scrap which, of course, after sustaining slight losses, would go back into the re-cycling process of manufacture. Two important points need mention. The State has no case (in the order under attack) that any slabs which had suffered duty had been sold as slabs. The whole quantity had gone into manufacture of sheets, circles and what not. It is common case that from April 25, 1960 all the finished goods cleared by Excise officials had been subjected to Rs. 500/- per MT of duty10. The above facts make out, fool-proof fashion, that the entire 649 odd MT of slabs had been transformed into sheets and the like. If the latter had been cleared on payment of excise at Rs. 500/- per MT - and it is admitted to have been so done - it follows that the levy was excessive to the tune of Rs. 300/- per MT as the notification granting exemption on April 20, 1960 had reduced the levy in such cases to Rs. 200/- per MT11. This almost inescapable conclusion was sought to be countered by Shri Sanghi in a strenuous but unsuccessful submission which had appealed to the Central Govt. in its order D/- 21-8-67. The reasoning, only to be stated to be rejected, urged was that only if the sheets, circles, etc., had been manufactured wholly and solely out of duty paid slabs could the exemption be enjoyed. This condition of eligibility for concessional rate of duty is beyond the notification altogether and perhaps beyond reason. True the order of Government in revision, rejecting the refund claim states this as the solitary ground.Shri Sanghi for the respondent rightly asked whether a manufacturer who used 1 per cent duty paid and 99 per cent non-duty paid slabs in producing sheets can get away with it from liability for duty at the rate of Rs. 500/- ? No, not at all. Such an assessee will get the benefit of the concessional rate (shall we call it rebate ?) only to the extent of the 1 per cent and will be subject to full payment at Rs. 500/- for the rest. If the mathematical facts are undisputed, the factual conclusion is irrefutable. Of course, had there been failure on the part of the assessee to keep the statutory stock registers or otherwise his figures were suspicious the Collector of Excise could and would, ordinarily without fear of judicial interference, work out how much of the raw material had borne duty already. Here the facts are free from dispute and the respondent does not even hint at the possibility of a part of the gross mass of 649.5620 MT which had been already dutied at the slab stage (some of which had been shed but reverted to the scrap state in the inevitable process of manufacture and had been thrown, as fresh raw material, into the on-going cyclic movement of re-creation of final products) had been sold away at that intermediate level. On that footing, the appellant was entitled to pro tanto remission as explained above. Both sides are at one that after April 24, 1960 excise clearance of finished aluminium products was granted to the appellant on the single point levy system at Rs. 500/- per MT12. The marginal mystique in interpretation has arisen from misunderstanding the spirit and letter of the notification where it reads : the virgin metal on which the appropriate Excise Duty has been paid from so much of the duty leviable thereon as is in excess of Rs. 200.00 per metric tonne. There is no need to go down to the order of the Collector of Excise and examine his reasons because it is somewhat obscure and sheds no more light on the issue before us13. To return what has been taken wrongly is as much a duty and grace of government as to levy relentlessly and fully what is due. Default in either, not altogether unfamiliar, brings down the confidence of the community in the Administration. That a party should have been put to two expensive and elongated litigations to recover a relatively small sum is regrettable.We think not. To liquidate obscurity in legislative language, by abandoning obsolescent vocabulary and style of expression is an overdue measure if we remember the Renton Committees observations made for British consumers but applies a fortiori to our Republic :There is hardly any part of our national life or of our personal lives that is not affected by one statute or another. The affairs of local authorities, nationalised industries, public corporations and private commerce are regulated by legislation. The life of the ordinary citizen is affected by various provisions of the statute books from cradle to graveThe rule of law is the conrerstone of democracy and how can there be a rule of law society if the members, the bulk of whom are too poor to buy legal services, cannot decode the legislators law and therefore obey it ?15. Incomprehensible law annoys the Administration and estranges the citizen at a time when quick justice and less sterile litigation are the desiderata. The command of the Law can claim the allegiance of the lay only by simplicity in legislation. | 1 | 3,017 | 1,845 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
### Input:
case that from April 25, 1960 all the finished goods cleared by Excise officials had been subjected to Rs. 500/- per MT of duty. 10. The above facts make out, fool-proof fashion, that the entire 649 odd MT of slabs had been transformed into sheets and the like. If the latter had been cleared on payment of excise at Rs. 500/- per MT - and it is admitted to have been so done - it follows that the levy was excessive to the tune of Rs. 300/- per MT as the notification granting exemption on April 20, 1960 had reduced the levy in such cases to Rs. 200/- per MT. 11. This almost inescapable conclusion was sought to be countered by Shri Sanghi in a strenuous but unsuccessful submission which had appealed to the Central Govt. in its order D/- 21-8-67. The reasoning, only to be stated to be rejected, urged was that only if the sheets, circles, etc., had been manufactured wholly and solely out of duty paid slabs could the exemption be enjoyed. This condition of eligibility for concessional rate of duty is beyond the notification altogether and perhaps beyond reason. True the order of Government in revision, rejecting the refund claim states this as the solitary ground. We quote the relevant portion : As the wordings of the notification would go to show, the concessional rate of Rs. 200/- per MT was applicable only to those Aluminium manufactures, which were made out of duty paid aluminium in any crude form; this would evidently not cover aluminium manufactures made partly out of duty paid and partly out of non-duty paid crude. We wonder where the author of this order discovers in the statutory notification the exclusion from exemption altogether manufactures partly out of duty paid and partly out of non-duty paid crude. If 99 per cent of duty paid crude were used for manufacture of sheets, etc., should the final product be exigible to tax at Rs. 500/- per MT ? Would it not virtually mean that merely because a bit of non-duty paid crude were mixed the party is penalised by payment of Rs. 800/- per MT ? An odd and unreasonable result ! Shri Sanghi for the respondent rightly asked whether a manufacturer who used 1 per cent duty paid and 99 per cent non-duty paid slabs in producing sheets can get away with it from liability for duty at the rate of Rs. 500/- ? No, not at all. Such an assessee will get the benefit of the concessional rate (shall we call it rebate ?) only to the extent of the 1 per cent and will be subject to full payment at Rs. 500/- for the rest. If the mathematical facts are undisputed, the factual conclusion is irrefutable. Of course, had there been failure on the part of the assessee to keep the statutory stock registers or otherwise his figures were suspicious the Collector of Excise could and would, ordinarily without fear of judicial interference, work out how much of the raw material had borne duty already. Here the facts are free from dispute and the respondent does not even hint at the possibility of a part of the gross mass of 649.5620 MT which had been already dutied at the slab stage (some of which had been shed but reverted to the scrap state in the inevitable process of manufacture and had been thrown, as fresh raw material, into the on-going cyclic movement of re-creation of final products) had been sold away at that intermediate level. On that footing, the appellant was entitled to pro tanto remission as explained above. Both sides are at one that after April 24, 1960 excise clearance of finished aluminium products was granted to the appellant on the single point levy system at Rs. 500/- per MT. 12. The marginal mystique in interpretation has arisen from misunderstanding the spirit and letter of the notification where it reads : the virgin metal on which the appropriate Excise Duty has been paid from so much of the duty leviable thereon as is in excess of Rs. 200.00 per metric tonne. There is no need to go down to the order of the Collector of Excise and examine his reasons because it is somewhat obscure and sheds no more light on the issue before us. 13. To return what has been taken wrongly is as much a duty and grace of government as to levy relentlessly and fully what is due. Default in either, not altogether unfamiliar, brings down the confidence of the community in the Administration. That a party should have been put to two expensive and elongated litigations to recover a relatively small sum is regrettable. 14. Assuming that the tax officers have an alibi of two interpretations of the given notification, the question is whether plainer use of language is an art beyond the draftsmans skill ? We think not. To liquidate obscurity in legislative language, by abandoning obsolescent vocabulary and style of expression is an overdue measure if we remember the Renton Committees observations made for British consumers but applies a fortiori to our Republic : There is hardly any part of our national life or of our personal lives that is not affected by one statute or another. The affairs of local authorities, nationalised industries, public corporations and private commerce are regulated by legislation. The life of the ordinary citizen is affected by various provisions of the statute books from cradle to grave. The rule of law is the conrerstone of democracy and how can there be a rule of law society if the members, the bulk of whom are too poor to buy legal services, cannot decode the legislators law and therefore obey it ? 15. Incomprehensible law annoys the Administration and estranges the citizen at a time when quick justice and less sterile litigation are the desiderata. The command of the Law can claim the allegiance of the lay only by simplicity in legislation.
### Response:
1
### Explanation:
the Central Government (Annexure E), the balance of stock of finished goods manufactured out of duty paid slabs as on April 25, 1960 was 93.5099 MT. This quantity was actually cleared on payment of duty at the rate of Rs. 500/- per MT. But having been made out of duty paid slabs the exemption notification applied and only Rs. 200/- per MT was payable. Thus the excess collected i.e., Rs. 300/- per MT was refundable. So obvious. And yet it took an appeal to this Court (C.A. No. 635 of 1964) and a direction for reconsideration before the Central Government would reluctantly consent to refund as per order D/- 21-8-1967. There is no surviving dispute on this matter.This was natural, as the manufacture of sheets, circles, etc., out of slabs involved degradation of about 50 per cent into scrap which, of course, after sustaining slight losses, would go back into the re-cycling process of manufacture. Two important points need mention. The State has no case (in the order under attack) that any slabs which had suffered duty had been sold as slabs. The whole quantity had gone into manufacture of sheets, circles and what not. It is common case that from April 25, 1960 all the finished goods cleared by Excise officials had been subjected to Rs. 500/- per MT of duty10. The above facts make out, fool-proof fashion, that the entire 649 odd MT of slabs had been transformed into sheets and the like. If the latter had been cleared on payment of excise at Rs. 500/- per MT - and it is admitted to have been so done - it follows that the levy was excessive to the tune of Rs. 300/- per MT as the notification granting exemption on April 20, 1960 had reduced the levy in such cases to Rs. 200/- per MT11. This almost inescapable conclusion was sought to be countered by Shri Sanghi in a strenuous but unsuccessful submission which had appealed to the Central Govt. in its order D/- 21-8-67. The reasoning, only to be stated to be rejected, urged was that only if the sheets, circles, etc., had been manufactured wholly and solely out of duty paid slabs could the exemption be enjoyed. This condition of eligibility for concessional rate of duty is beyond the notification altogether and perhaps beyond reason. True the order of Government in revision, rejecting the refund claim states this as the solitary ground.Shri Sanghi for the respondent rightly asked whether a manufacturer who used 1 per cent duty paid and 99 per cent non-duty paid slabs in producing sheets can get away with it from liability for duty at the rate of Rs. 500/- ? No, not at all. Such an assessee will get the benefit of the concessional rate (shall we call it rebate ?) only to the extent of the 1 per cent and will be subject to full payment at Rs. 500/- for the rest. If the mathematical facts are undisputed, the factual conclusion is irrefutable. Of course, had there been failure on the part of the assessee to keep the statutory stock registers or otherwise his figures were suspicious the Collector of Excise could and would, ordinarily without fear of judicial interference, work out how much of the raw material had borne duty already. Here the facts are free from dispute and the respondent does not even hint at the possibility of a part of the gross mass of 649.5620 MT which had been already dutied at the slab stage (some of which had been shed but reverted to the scrap state in the inevitable process of manufacture and had been thrown, as fresh raw material, into the on-going cyclic movement of re-creation of final products) had been sold away at that intermediate level. On that footing, the appellant was entitled to pro tanto remission as explained above. Both sides are at one that after April 24, 1960 excise clearance of finished aluminium products was granted to the appellant on the single point levy system at Rs. 500/- per MT12. The marginal mystique in interpretation has arisen from misunderstanding the spirit and letter of the notification where it reads : the virgin metal on which the appropriate Excise Duty has been paid from so much of the duty leviable thereon as is in excess of Rs. 200.00 per metric tonne. There is no need to go down to the order of the Collector of Excise and examine his reasons because it is somewhat obscure and sheds no more light on the issue before us13. To return what has been taken wrongly is as much a duty and grace of government as to levy relentlessly and fully what is due. Default in either, not altogether unfamiliar, brings down the confidence of the community in the Administration. That a party should have been put to two expensive and elongated litigations to recover a relatively small sum is regrettable.We think not. To liquidate obscurity in legislative language, by abandoning obsolescent vocabulary and style of expression is an overdue measure if we remember the Renton Committees observations made for British consumers but applies a fortiori to our Republic :There is hardly any part of our national life or of our personal lives that is not affected by one statute or another. The affairs of local authorities, nationalised industries, public corporations and private commerce are regulated by legislation. The life of the ordinary citizen is affected by various provisions of the statute books from cradle to graveThe rule of law is the conrerstone of democracy and how can there be a rule of law society if the members, the bulk of whom are too poor to buy legal services, cannot decode the legislators law and therefore obey it ?15. Incomprehensible law annoys the Administration and estranges the citizen at a time when quick justice and less sterile litigation are the desiderata. The command of the Law can claim the allegiance of the lay only by simplicity in legislation.
|
Sushil Kumar Singhal Vs. Regional Manager Punjab National Bank | as under :- "No banking company –(a) .......(b) Shall employ or continue the employment of any person –(i) who is, or at any time has been, adjudicated insolvent, or has suspended payment or has compounded with his creditors, or who is, or has been, convicted by a criminal court of an offence involving moral turpitude." (emphasis supplied) The aforesaid provision makes it clear that the Management is under an obligation to discontinue the services of an employee who is or has been convicted by a Criminal Court for an offence involving moral turpitude. 21. Moral Turpitude means [Per Blacks Law Dictionary (8th Edn.,2004)] :- "Conduct that is contrary to justice, honesty, or morality. In the area of legal ethics, offenses involving moral turpitude such as fraud or breach of trust. Also termed moral depravity.Moral turpitude means, in general, shameful wickedness- so extreme a departure from ordinary standards of honest, good morals, justice, or ethics as to be shocking to the moral sense of the community. It has also been defined as an act of baseness, vileness, or depravity in the private and social duties which one person owes to another, or to society in general, contrary to the accepted and customary rule of right and duty between people." 22. In Pawan Kumar Vs. State of Haryana & Anr., AIR 1996 SC 3300 , this Court has observed as under:- "`Moral turpitude is an expression which is used in legal as also societal parlance to describe conduct which is inherently base, vile, depraved or having any connection showing depravity." 23. The aforesaid judgment in Pawan Kumar (supra) has been considered by this Court again in Allahabad Bank & Anr. Vs. Deepak Kumar Bhola, (1997) 4 SCC 1 ; and placed reliance on Baleshwar Singh Vs. District Magistrate and Collector, AIR 1959 All. 71 , wherein it has been held as under:- "The expression `moral turpitude is not defined anywhere. But it means anything done contrary to justice, honesty, modesty or good morals. It implies depravity and wickedness of character or disposition of the person charged with the particular conduct. Every false statement made by a person may not be moral turpitude, but it would be so if it discloses vileness or depravity in the doing of any private and social duty which a person owes to his fellow men or to the society in general. If therefore the individual charged with a certain conduct owes a duty, either to another individual or to the society in general, to act in a specific manner or not to so act and he still acts contrary to it and does so knowingly, his conduct must be held to be due to vileness and depravity. It will be contrary to accepted customary rule and duty between man and man." 24. In view of the above, it is evident that moral turpitude means anything contrary to honesty, modesty or good morals. It means vileness and depravity. In fact, the conviction of a person in a crime involving moral turpitude impeaches his credibility as he has been found to have indulged in shameful, wicked, and base activities. 25. Undoubtedly, the embezzlement of Rs.5000/- by the appellant, for which he had been convicted, was an offence involving moral turpitude. The Statutory provisions of the Act, 1949, provide that the Management shall not permit any person convicted for an offence involving moral turpitude to continue in employment. 26. In Manish Goel Vs. Rohini Goel, AIR 2010 SC 1099 , this Court after placing reliance on large number of its earlier judgments held as under :- "No Court has competence to issue a direction contrary to law nor the Court can direct an authority to act in contravention of the statutory provisions. The courts are meant to enforce the rule of law and not to pass the orders or directions which are contrary to what has been injuncted by law." Thus, in such a fact-situation, it is not permissible for this Court to issue any direction as had been issued in the case of Shankar Dass (supra). 27. In view of the above, we reach the conclusion that once a Criminal Court grants a delinquent employee the benefit of Act, 1958, its order does not have any bearing so far as the service of such employee is concerned. The word "disqualification" in Section 12 of the Act, 1958 provides that such a person shall not stand disqualified for the purposes of other Acts like the Representation of the People Act, 1950 etc. The conviction in a criminal case is one part of the case and release on probation is another. Therefore, grant of benefit of the provisions of Act, 1958, only enables the delinquent not to undergo the sentence on showing his good conduct during the period of probation. In case, after being released, the delinquent commits another offence, benefit of Act, 1958 gets terminated and the delinquent can be made liable to undergo the sentence. Therefore, in case of an employee who stands convicted for an offence involving moral turpitude, it is his misconduct that leads to his dismissal.28. Undoubtedly, the appellant was convicted by the Criminal Court for having committed the offence under Section 409 IPC and was awarded two years sentence. The appellate court granted him the benefit of Act, 1958. The Tribunal rejected his claim for re-instatement and other benefits taking note of the fact that appellant was given an opportunity by the Management to show cause as to why he should not be dismissed from service. The appellant submitted his reply to the said show cause notice. The Management passed the order of dismissal in view of the provisions of the Act, 1949. The Tribunal also took into consideration the contents of the Bi-Partite Settlement applicable in the case and rejected the appellants claim. The High Court considered appellants grievance elaborately as is evident from the impugned judgment. We could not persuade ourselves, in the aforesaid fact-situation, that any other view could also be possible. | 0[ds]27. In view of the above, we reach the conclusion that once a Criminal Court grants a delinquent employee the benefit of Act, 1958, its order does not have any bearing so far as the service of such employee is concerned. The word "disqualification" in Section 12 of the Act, 1958 provides that such a person shall not stand disqualified for the purposes of other Acts like the Representation of the People Act, 1950 etc. The conviction in a criminal case is one part of the case and release on probation is another. Therefore, grant of benefit of the provisions of Act, 1958, only enables the delinquent not to undergo the sentence on showing his good conduct during the period of probation. In case, after being released, the delinquent commits another offence, benefit of Act, 1958 gets terminated and the delinquent can be made liable to undergo the sentence. Therefore, in case of an employee who stands convicted for an offence involving moral turpitude, it is his misconduct that leads to his dismissal.28. Undoubtedly, the appellant was convicted by the Criminal Court for having committed the offence under Section 409 IPC and was awarded two years sentence. The appellate court granted him the benefit of Act, 1958. The Tribunal rejected his claim forand other benefits taking note of the fact that appellant was given an opportunity by the Management to show cause as to why he should not be dismissed from service. The appellant submitted his reply to the said show cause notice. The Management passed the order of dismissal in view of the provisions of the Act, 1949. The Tribunal also took into consideration the contents of theSettlement applicable in the case and rejected the appellants claim. The High Court considered appellants grievance elaborately as is evident from the impugned judgment. We could not persuade ourselves, in the aforesaidthat any other view could also be possible. | 0 | 3,746 | 356 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
### Input:
as under :- "No banking company –(a) .......(b) Shall employ or continue the employment of any person –(i) who is, or at any time has been, adjudicated insolvent, or has suspended payment or has compounded with his creditors, or who is, or has been, convicted by a criminal court of an offence involving moral turpitude." (emphasis supplied) The aforesaid provision makes it clear that the Management is under an obligation to discontinue the services of an employee who is or has been convicted by a Criminal Court for an offence involving moral turpitude. 21. Moral Turpitude means [Per Blacks Law Dictionary (8th Edn.,2004)] :- "Conduct that is contrary to justice, honesty, or morality. In the area of legal ethics, offenses involving moral turpitude such as fraud or breach of trust. Also termed moral depravity.Moral turpitude means, in general, shameful wickedness- so extreme a departure from ordinary standards of honest, good morals, justice, or ethics as to be shocking to the moral sense of the community. It has also been defined as an act of baseness, vileness, or depravity in the private and social duties which one person owes to another, or to society in general, contrary to the accepted and customary rule of right and duty between people." 22. In Pawan Kumar Vs. State of Haryana & Anr., AIR 1996 SC 3300 , this Court has observed as under:- "`Moral turpitude is an expression which is used in legal as also societal parlance to describe conduct which is inherently base, vile, depraved or having any connection showing depravity." 23. The aforesaid judgment in Pawan Kumar (supra) has been considered by this Court again in Allahabad Bank & Anr. Vs. Deepak Kumar Bhola, (1997) 4 SCC 1 ; and placed reliance on Baleshwar Singh Vs. District Magistrate and Collector, AIR 1959 All. 71 , wherein it has been held as under:- "The expression `moral turpitude is not defined anywhere. But it means anything done contrary to justice, honesty, modesty or good morals. It implies depravity and wickedness of character or disposition of the person charged with the particular conduct. Every false statement made by a person may not be moral turpitude, but it would be so if it discloses vileness or depravity in the doing of any private and social duty which a person owes to his fellow men or to the society in general. If therefore the individual charged with a certain conduct owes a duty, either to another individual or to the society in general, to act in a specific manner or not to so act and he still acts contrary to it and does so knowingly, his conduct must be held to be due to vileness and depravity. It will be contrary to accepted customary rule and duty between man and man." 24. In view of the above, it is evident that moral turpitude means anything contrary to honesty, modesty or good morals. It means vileness and depravity. In fact, the conviction of a person in a crime involving moral turpitude impeaches his credibility as he has been found to have indulged in shameful, wicked, and base activities. 25. Undoubtedly, the embezzlement of Rs.5000/- by the appellant, for which he had been convicted, was an offence involving moral turpitude. The Statutory provisions of the Act, 1949, provide that the Management shall not permit any person convicted for an offence involving moral turpitude to continue in employment. 26. In Manish Goel Vs. Rohini Goel, AIR 2010 SC 1099 , this Court after placing reliance on large number of its earlier judgments held as under :- "No Court has competence to issue a direction contrary to law nor the Court can direct an authority to act in contravention of the statutory provisions. The courts are meant to enforce the rule of law and not to pass the orders or directions which are contrary to what has been injuncted by law." Thus, in such a fact-situation, it is not permissible for this Court to issue any direction as had been issued in the case of Shankar Dass (supra). 27. In view of the above, we reach the conclusion that once a Criminal Court grants a delinquent employee the benefit of Act, 1958, its order does not have any bearing so far as the service of such employee is concerned. The word "disqualification" in Section 12 of the Act, 1958 provides that such a person shall not stand disqualified for the purposes of other Acts like the Representation of the People Act, 1950 etc. The conviction in a criminal case is one part of the case and release on probation is another. Therefore, grant of benefit of the provisions of Act, 1958, only enables the delinquent not to undergo the sentence on showing his good conduct during the period of probation. In case, after being released, the delinquent commits another offence, benefit of Act, 1958 gets terminated and the delinquent can be made liable to undergo the sentence. Therefore, in case of an employee who stands convicted for an offence involving moral turpitude, it is his misconduct that leads to his dismissal.28. Undoubtedly, the appellant was convicted by the Criminal Court for having committed the offence under Section 409 IPC and was awarded two years sentence. The appellate court granted him the benefit of Act, 1958. The Tribunal rejected his claim for re-instatement and other benefits taking note of the fact that appellant was given an opportunity by the Management to show cause as to why he should not be dismissed from service. The appellant submitted his reply to the said show cause notice. The Management passed the order of dismissal in view of the provisions of the Act, 1949. The Tribunal also took into consideration the contents of the Bi-Partite Settlement applicable in the case and rejected the appellants claim. The High Court considered appellants grievance elaborately as is evident from the impugned judgment. We could not persuade ourselves, in the aforesaid fact-situation, that any other view could also be possible.
### Response:
0
### Explanation:
27. In view of the above, we reach the conclusion that once a Criminal Court grants a delinquent employee the benefit of Act, 1958, its order does not have any bearing so far as the service of such employee is concerned. The word "disqualification" in Section 12 of the Act, 1958 provides that such a person shall not stand disqualified for the purposes of other Acts like the Representation of the People Act, 1950 etc. The conviction in a criminal case is one part of the case and release on probation is another. Therefore, grant of benefit of the provisions of Act, 1958, only enables the delinquent not to undergo the sentence on showing his good conduct during the period of probation. In case, after being released, the delinquent commits another offence, benefit of Act, 1958 gets terminated and the delinquent can be made liable to undergo the sentence. Therefore, in case of an employee who stands convicted for an offence involving moral turpitude, it is his misconduct that leads to his dismissal.28. Undoubtedly, the appellant was convicted by the Criminal Court for having committed the offence under Section 409 IPC and was awarded two years sentence. The appellate court granted him the benefit of Act, 1958. The Tribunal rejected his claim forand other benefits taking note of the fact that appellant was given an opportunity by the Management to show cause as to why he should not be dismissed from service. The appellant submitted his reply to the said show cause notice. The Management passed the order of dismissal in view of the provisions of the Act, 1949. The Tribunal also took into consideration the contents of theSettlement applicable in the case and rejected the appellants claim. The High Court considered appellants grievance elaborately as is evident from the impugned judgment. We could not persuade ourselves, in the aforesaidthat any other view could also be possible.
|
The Management Of Express Newspapers Ltd Vs. B. Somayajulu And Others | The further question has to be considered is whether the respondent satisfies the other test : " was his working as a correspondent his principal avocation at the relevant time"? The definition requires that the respondent must show that he was a working journalist at the time when his services were terminated; and that can be decided only on the evidence adduced by the parties. Unfortunately, though the Labour Court has made certain observations on this point, it has not considered all the evidence and has made no definite finding in that behalf. That was because it held that as a part time employee, the respondent was outside S. 2(b). The High Court has no doubt purported to make a finding even on this ground in the alternative, but, in our opinion, the High Court should not have adopted this course in dealing with a write petition under Articles 226 and 227. Even in dealing with this question, the High Court appears to have been impressed by the fact that in discharging his work as a correspondent the respondent must have devoted a large part of his time; and it took the view that the test that journalism should be the principal avocation of the journalist implied at test as to how much time is spent in doing the work in question? The time spent by a journalist in discharging his duties as such may no doubt be relevant, but it cannot be decisive. What would be relevant, material and decisive is the gain made by the part time journalist by pursuing the profession of journalism as compared to the gain made by him by pursuing other vocations or professions. In dealing with this aspect of the matter, it may no doubt be relevant to bear in mind the fact that some months before his services as a correspondent were terminated, the respondents selling agency had come to an end, and so, the Labour Court may have to hold an enquiry into the question as to whether the respondent proves that the work of correspondent was his principal avocation at the relevant time in the light of the relevant facts. The onus to prove this issue as well as the issue as to whether he was in the exclusive employment of the appellant lies on the respondent, because his claim that he is a working journalist on these ground is disputed by the appellant and it is only if he establishes the fact that he is a working journalist that the question as to determining the relief to which he is entitled may arise. We, therefore, allow the appeal, set aside the order passed by the High Court and remand the case to the Labour Court with a direction that it should deal with the dispute between the parties in accordance with law in the light of this judgment. These would be no order as to costs.12. Before we part with this appeal, however, we would incidentally like to refer to the fact that the test of the principal avocation prescribed by S. 2(b) has presumably been adopted by the legislature from the recommendations made by the Press Commission in its report. In paragraph 505, dealing with the question of working journalists, the Commission observed that it thought that "only those whose professed avocation and the principal means of livelihood is journalism should be regarded as working journalists," and it added that "we have deliberately included the words "professed avocation" because we have come across cases where persons belonging to some other professions, such as law, medicine, education, have devoted past of their time to the supply of news to and writing articles for newspapers. It may be that in the case of some of them, particularly during the earlier years of their professional career, income from the practice of their own professional. But it would not, on that account, be correct to classify them as working journalists, so long as their professed avocation is other than journalism." It would be noticed that the expression "professed avocation" has not been adopted by the legislature; instead, it has used the words "principal avocation". That is why we are inclined to take the view that the time taken by a person in pursuing two different professions may not be decisive; what would be decisive is the income derived by him from the different professions respectively. It does appear that the legislature was inclined to take the view that if a person following the profession of law in the early years of his career received more money from journalistic work and satisfied the other tests prescribed by S. 2(b) , he may not be excluded from the definition merely because he is following another profession. To that extent, the provision of S. 2 (b) departs from a part of the recommendation made by the Press Commissions.13. In regard to part time employees who, as we have held, are not necessarily excluded from S. 2 (b), the position appears to be that the report by the Wage Committee appointed by the Union Government under the provisions of Act 45 of 1955, shows that the Committee treated some part time employees as working journalists. In Paragraph 103, the committee has observed that it had provided a regular scale or retainer for part time correspondents, and it has added that the remuneration in accordance with that scale will be available to the part time correspondents only if, in accordance with the definition in Paragraph 23, Pat II, of its recommendations, their principal avocation is journalism. The Committee noticed the fact that many of the part time correspondents employed by newspaper establishments would not fall within the definition if their principal avocation is something else and journalism is only a side business, and it added that the problem of the said class of part time correspondents was not within the purview of its terms of reference, and so, it made no recommendations in regard to that class.14. | 1[ds]In dealing with this aspect of the matter, it may no doubt be relevant to bear in mind the fact that some months before his services as a correspondent were terminated, the respondents selling agency had come to an end, and so, the Labour Court may have to hold an enquiry into the question as to whether the respondent proves that the work of correspondent was his principal avocation at the relevant time in the light of the relevant facts. The onus to prove this issue as well as the issue as to whether he was in the exclusive employment of the appellant lies on the respondent, because his claim that he is a working journalist on these ground is disputed by the appellant and it is only if he establishes the fact that he is a working journalist that the question as to determining the relief to which he is entitled may arise. We, therefore, allow the appeal, set aside the order passed by the High Court and remand the case to the Labour Court with a direction that it should deal with the dispute between the parties in accordance with law in the light of this judgment. These would be no order as to costs.12. Before we part with this appeal, however, we would incidentally like to refer to the fact that the test of the principal avocation prescribed by S. 2(b) has presumably been adopted by the legislature from the recommendations made by the Press Commission in its report. In paragraph 505, dealing with the question of working journalists, the Commission observed that it thought that "only those whose professed avocation and the principal means of livelihood is journalism should be regarded as working journalists," and it added that "we have deliberately included the words "professed avocation" because we have come across cases where persons belonging to some other professions, such as law, medicine, education, have devoted past of their time to the supply of news to and writing articles for newspapers. It may be that in the case of some of them, particularly during the earlier years of their professional career, income from the practice of their own professional. But it would not, on that account, be correct to classify them as working journalists, so long as their professed avocation is other than journalism." It would be noticed that the expression "professed avocation" has not been adopted by the legislature; instead, it has used the words "principal avocation". That is why we are inclined to take the view that the time taken by a person in pursuing two different professions may not be decisive; what would be decisive is the income derived by him from the different professions respectively. It does appear that the legislature was inclined to take the view that if a person following the profession of law in the early years of his career received more money from journalistic work and satisfied the other tests prescribed by S. 2(b) , he may not be excluded from the definition merely because he is following another profession. To that extent, the provision of S. 2 (b) departs from a part of the recommendation made by the Press Commissions.13. In regard to part time employees who, as we have held, are not necessarily excluded from S. 2 (b), the position appears to be that the report by the Wage Committee appointed by the Union Government under the provisions of Act 45 of 1955, shows that the Committee treated some part time employees as working journalists. In Paragraph 103, the committee has observed that it had provided a regular scale or retainer for part time correspondents, and it has added that the remuneration in accordance with that scale will be available to the part time correspondents only if, in accordance with the definition in Paragraph 23, Pat II, of its recommendations, their principal avocation is journalism. The Committee noticed the fact that many of the part time correspondents employed by newspaper establishments would not fall within the definition if their principal avocation is something else and journalism is only a side business, and it added that the problem of the said class of part time correspondents was not within the purview of its terms of reference, and so, it made no recommendations in regard to that class. | 1 | 4,971 | 798 | ### Instruction:
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The further question has to be considered is whether the respondent satisfies the other test : " was his working as a correspondent his principal avocation at the relevant time"? The definition requires that the respondent must show that he was a working journalist at the time when his services were terminated; and that can be decided only on the evidence adduced by the parties. Unfortunately, though the Labour Court has made certain observations on this point, it has not considered all the evidence and has made no definite finding in that behalf. That was because it held that as a part time employee, the respondent was outside S. 2(b). The High Court has no doubt purported to make a finding even on this ground in the alternative, but, in our opinion, the High Court should not have adopted this course in dealing with a write petition under Articles 226 and 227. Even in dealing with this question, the High Court appears to have been impressed by the fact that in discharging his work as a correspondent the respondent must have devoted a large part of his time; and it took the view that the test that journalism should be the principal avocation of the journalist implied at test as to how much time is spent in doing the work in question? The time spent by a journalist in discharging his duties as such may no doubt be relevant, but it cannot be decisive. What would be relevant, material and decisive is the gain made by the part time journalist by pursuing the profession of journalism as compared to the gain made by him by pursuing other vocations or professions. In dealing with this aspect of the matter, it may no doubt be relevant to bear in mind the fact that some months before his services as a correspondent were terminated, the respondents selling agency had come to an end, and so, the Labour Court may have to hold an enquiry into the question as to whether the respondent proves that the work of correspondent was his principal avocation at the relevant time in the light of the relevant facts. The onus to prove this issue as well as the issue as to whether he was in the exclusive employment of the appellant lies on the respondent, because his claim that he is a working journalist on these ground is disputed by the appellant and it is only if he establishes the fact that he is a working journalist that the question as to determining the relief to which he is entitled may arise. We, therefore, allow the appeal, set aside the order passed by the High Court and remand the case to the Labour Court with a direction that it should deal with the dispute between the parties in accordance with law in the light of this judgment. These would be no order as to costs.12. Before we part with this appeal, however, we would incidentally like to refer to the fact that the test of the principal avocation prescribed by S. 2(b) has presumably been adopted by the legislature from the recommendations made by the Press Commission in its report. In paragraph 505, dealing with the question of working journalists, the Commission observed that it thought that "only those whose professed avocation and the principal means of livelihood is journalism should be regarded as working journalists," and it added that "we have deliberately included the words "professed avocation" because we have come across cases where persons belonging to some other professions, such as law, medicine, education, have devoted past of their time to the supply of news to and writing articles for newspapers. It may be that in the case of some of them, particularly during the earlier years of their professional career, income from the practice of their own professional. But it would not, on that account, be correct to classify them as working journalists, so long as their professed avocation is other than journalism." It would be noticed that the expression "professed avocation" has not been adopted by the legislature; instead, it has used the words "principal avocation". That is why we are inclined to take the view that the time taken by a person in pursuing two different professions may not be decisive; what would be decisive is the income derived by him from the different professions respectively. It does appear that the legislature was inclined to take the view that if a person following the profession of law in the early years of his career received more money from journalistic work and satisfied the other tests prescribed by S. 2(b) , he may not be excluded from the definition merely because he is following another profession. To that extent, the provision of S. 2 (b) departs from a part of the recommendation made by the Press Commissions.13. In regard to part time employees who, as we have held, are not necessarily excluded from S. 2 (b), the position appears to be that the report by the Wage Committee appointed by the Union Government under the provisions of Act 45 of 1955, shows that the Committee treated some part time employees as working journalists. In Paragraph 103, the committee has observed that it had provided a regular scale or retainer for part time correspondents, and it has added that the remuneration in accordance with that scale will be available to the part time correspondents only if, in accordance with the definition in Paragraph 23, Pat II, of its recommendations, their principal avocation is journalism. The Committee noticed the fact that many of the part time correspondents employed by newspaper establishments would not fall within the definition if their principal avocation is something else and journalism is only a side business, and it added that the problem of the said class of part time correspondents was not within the purview of its terms of reference, and so, it made no recommendations in regard to that class.14.
### Response:
1
### Explanation:
In dealing with this aspect of the matter, it may no doubt be relevant to bear in mind the fact that some months before his services as a correspondent were terminated, the respondents selling agency had come to an end, and so, the Labour Court may have to hold an enquiry into the question as to whether the respondent proves that the work of correspondent was his principal avocation at the relevant time in the light of the relevant facts. The onus to prove this issue as well as the issue as to whether he was in the exclusive employment of the appellant lies on the respondent, because his claim that he is a working journalist on these ground is disputed by the appellant and it is only if he establishes the fact that he is a working journalist that the question as to determining the relief to which he is entitled may arise. We, therefore, allow the appeal, set aside the order passed by the High Court and remand the case to the Labour Court with a direction that it should deal with the dispute between the parties in accordance with law in the light of this judgment. These would be no order as to costs.12. Before we part with this appeal, however, we would incidentally like to refer to the fact that the test of the principal avocation prescribed by S. 2(b) has presumably been adopted by the legislature from the recommendations made by the Press Commission in its report. In paragraph 505, dealing with the question of working journalists, the Commission observed that it thought that "only those whose professed avocation and the principal means of livelihood is journalism should be regarded as working journalists," and it added that "we have deliberately included the words "professed avocation" because we have come across cases where persons belonging to some other professions, such as law, medicine, education, have devoted past of their time to the supply of news to and writing articles for newspapers. It may be that in the case of some of them, particularly during the earlier years of their professional career, income from the practice of their own professional. But it would not, on that account, be correct to classify them as working journalists, so long as their professed avocation is other than journalism." It would be noticed that the expression "professed avocation" has not been adopted by the legislature; instead, it has used the words "principal avocation". That is why we are inclined to take the view that the time taken by a person in pursuing two different professions may not be decisive; what would be decisive is the income derived by him from the different professions respectively. It does appear that the legislature was inclined to take the view that if a person following the profession of law in the early years of his career received more money from journalistic work and satisfied the other tests prescribed by S. 2(b) , he may not be excluded from the definition merely because he is following another profession. To that extent, the provision of S. 2 (b) departs from a part of the recommendation made by the Press Commissions.13. In regard to part time employees who, as we have held, are not necessarily excluded from S. 2 (b), the position appears to be that the report by the Wage Committee appointed by the Union Government under the provisions of Act 45 of 1955, shows that the Committee treated some part time employees as working journalists. In Paragraph 103, the committee has observed that it had provided a regular scale or retainer for part time correspondents, and it has added that the remuneration in accordance with that scale will be available to the part time correspondents only if, in accordance with the definition in Paragraph 23, Pat II, of its recommendations, their principal avocation is journalism. The Committee noticed the fact that many of the part time correspondents employed by newspaper establishments would not fall within the definition if their principal avocation is something else and journalism is only a side business, and it added that the problem of the said class of part time correspondents was not within the purview of its terms of reference, and so, it made no recommendations in regard to that class.
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The Kerala State Coop.Mktg. Federation Vs. State Bank Of India | banker and customer began as soon as the first cheque was handed in to the banker for collection, and not when it was paid.15. In Turner vs. London and Provincial Bank (1903) 2 Legal Decisions Affecting Bankers 33 : (1903) XXIV Journal of Institute of Bankers 220), evidence was admitted as proof of negligence, that the customer had given a reference on opening the account and that this was not followed up." 10. The principles governing the liability of a collecting banker have also been extracted in the impugned judgment. They read as follows: "(1) As a general rule the collecting banker shall be exposed to his usual liability under common law for conversation or for money had and received, as against the true owner of a cheque or a draft, in the event the customer from whom he collects the cheque or draft has not title or a defective title.(2) The banker, however, may claim protection from such normal liability provided he fulfils strictly, the conditions laid down in S. 131 or S.131A of the Act and one of those conditions is that he must have received the payment in good faith and without negligence.(3) It is the banker seeking protection who has on his shoulders the onus or proving that he acted in good faith and without negligence.(4) The standard of care to be exercised by the collecting banker to escape the charge of negligence depends upon the general practice of bankers which may go on changing from time to time with the enormous spread of banking activities and cases decided a few decades ago may not probably offer an unfailing guidance in determining the question about negligence today.(5) Negligence is a question of fact and what is relevant in determining the liability of a collecting banker is not his negligence in opening the account of the customer but negligence in the collection of the relevant cheque unless, of course, the opening of the account and depositing of the cheque in question therein from part and parcel of one scheme as where the account is opened with the cheque in question or deposited therein so soon after the opening of the account as to lead to an inference that the depositing the cheque and opening the account are interconnected moves in a integrated plan.(6) Negligence in opening the account such as failure to fulfill the procedure for opening an account which is prescribed by the bank itself or opening an account of an unknown person or non-existing person or with dubious introduction may lead to a cogent, though not conclusive, proof of negligence particularly if the cheque in question has been deposited in the account soon after the opening thereof.(7) The standard of care expected from a banker in collecting the cheque does not require him to subject the cheque to a minute and microscopic examination but disregarding the circumstances about the cheque which on the face of it give rise to a suspicion may amount to negligence on the part of the collecting banker.(8) The question of good faith and negligence is to be judged from the stand point of the true owner towards whom the banker owes no contractual duty but the statutory duty which is created by this section and it is a price which the banker pays for seeking protection, under the statute, from the otherwise larger liability he would be exposed to under common law.(9) Allegation of contributory negligence against the paying banker could provide no defence for a collecting banker who has not collected the amount in good faith and without negligence". 11. On the basis of the above law, let us now see whether the 1st Respondent bank has discharged the burden which lay upon it to show that it had acted in good faith and without negligence. 12. The facts narrated hereinabove indicate that the transaction of opening of the account, depositing the exact amount for being entitled to receive a cheque book, depositing of the cheque of Rs. 1,00,000/- and the withdrawal of the sum of Rs. 50,000/- were all part of the same transaction. All these took place in close proximity to each other. 13. The 1st Respondents Branch Manager gave evidence. From his evidence it is clear that the person who called himself K. Narayhanan opened an account on the introduction of an account holder by name Dharman Panicker. In the Account Opening Form the address is given only as "Kaniyarath P.O. Kallisseri". Thus an absolutely vague address was given. The Bank made no enquiries as to the credit worthiness of the said K. Narayhanan or as to his full address or even about his telephone number. Thereafter even though initially the account was opened with only Rs. 20/- the exact amount of Rs. 80/- was deposited for purposes of receipt of a cheque book. The 1st Respondent bank does not seem to have put on its guard, even when a cheque for a very large amount i.e. Rs. 1,00,000/- was deposited soon thereafter. In cross-examination the Branch Manager admits that in the Account opening form neither the name nor the occupation of the person introducing had been filled up. He admits that no enquiry was made regarding the nature of business of K. Narayhanan or where the place of business was. Even after it was found out that that a cheque had been forged and stop payment notice had been issued, no enquiry was made by the Bank with the introducer. When asked why no enquiries were made, the answer given was that the bank has no responsibility to look into it. Another factor which mitigates against the 1st Respondent Bank is that it made no attempt to lead the evidence of the person who had introduced the account holder.14. It appears to us that the above mentioned facts discloses that the 1st Respondent bank has not discharged the burden which lay upon it to show that it had acted in good faith and without negligence. | 1[ds]From his evidence it is clear that the person who called himself K. Narayhanan opened an account on the introduction of an account holder by name Dharman Panicker. In the Account Opening Form the address is given only as "Kaniyarath P.O. Kallisseri". Thus an absolutely vague address was given. The Bank made no enquiries as to the credit worthiness of the said K. Narayhanan or as to his full address or even about his telephone number. Thereafter even though initially the account was opened with only Rs. 20/- the exact amount of Rs. 80/- was deposited for purposes of receipt of a cheque book. The 1st Respondent bank does not seem to have put on its guard, even when a cheque for a very large amount i.e. Rs. 1,00,000/- was deposited soon thereafter. In cross-examination the Branch Manager admits that in the Account opening form neither the name nor the occupation of the person introducing had been filled up. He admits that no enquiry was made regarding the nature of business of K. Narayhanan or where the place of business was. Even after it was found out that that a cheque had been forged and stop payment notice had been issued, no enquiry was made by the Bank with the introducer. When asked why no enquiries were made, the answer given was that the bank has no responsibility to look into it. Another factor which mitigates against the 1st Respondent Bank is that it made no attempt to lead the evidence of the person who had introduced the account holder.14. It appears to us that the above mentioned facts discloses that the 1st Respondent bank has not discharged the burden which lay upon it to show that it had acted in good faith and without negligence. | 1 | 3,199 | 322 | ### Instruction:
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banker and customer began as soon as the first cheque was handed in to the banker for collection, and not when it was paid.15. In Turner vs. London and Provincial Bank (1903) 2 Legal Decisions Affecting Bankers 33 : (1903) XXIV Journal of Institute of Bankers 220), evidence was admitted as proof of negligence, that the customer had given a reference on opening the account and that this was not followed up." 10. The principles governing the liability of a collecting banker have also been extracted in the impugned judgment. They read as follows: "(1) As a general rule the collecting banker shall be exposed to his usual liability under common law for conversation or for money had and received, as against the true owner of a cheque or a draft, in the event the customer from whom he collects the cheque or draft has not title or a defective title.(2) The banker, however, may claim protection from such normal liability provided he fulfils strictly, the conditions laid down in S. 131 or S.131A of the Act and one of those conditions is that he must have received the payment in good faith and without negligence.(3) It is the banker seeking protection who has on his shoulders the onus or proving that he acted in good faith and without negligence.(4) The standard of care to be exercised by the collecting banker to escape the charge of negligence depends upon the general practice of bankers which may go on changing from time to time with the enormous spread of banking activities and cases decided a few decades ago may not probably offer an unfailing guidance in determining the question about negligence today.(5) Negligence is a question of fact and what is relevant in determining the liability of a collecting banker is not his negligence in opening the account of the customer but negligence in the collection of the relevant cheque unless, of course, the opening of the account and depositing of the cheque in question therein from part and parcel of one scheme as where the account is opened with the cheque in question or deposited therein so soon after the opening of the account as to lead to an inference that the depositing the cheque and opening the account are interconnected moves in a integrated plan.(6) Negligence in opening the account such as failure to fulfill the procedure for opening an account which is prescribed by the bank itself or opening an account of an unknown person or non-existing person or with dubious introduction may lead to a cogent, though not conclusive, proof of negligence particularly if the cheque in question has been deposited in the account soon after the opening thereof.(7) The standard of care expected from a banker in collecting the cheque does not require him to subject the cheque to a minute and microscopic examination but disregarding the circumstances about the cheque which on the face of it give rise to a suspicion may amount to negligence on the part of the collecting banker.(8) The question of good faith and negligence is to be judged from the stand point of the true owner towards whom the banker owes no contractual duty but the statutory duty which is created by this section and it is a price which the banker pays for seeking protection, under the statute, from the otherwise larger liability he would be exposed to under common law.(9) Allegation of contributory negligence against the paying banker could provide no defence for a collecting banker who has not collected the amount in good faith and without negligence". 11. On the basis of the above law, let us now see whether the 1st Respondent bank has discharged the burden which lay upon it to show that it had acted in good faith and without negligence. 12. The facts narrated hereinabove indicate that the transaction of opening of the account, depositing the exact amount for being entitled to receive a cheque book, depositing of the cheque of Rs. 1,00,000/- and the withdrawal of the sum of Rs. 50,000/- were all part of the same transaction. All these took place in close proximity to each other. 13. The 1st Respondents Branch Manager gave evidence. From his evidence it is clear that the person who called himself K. Narayhanan opened an account on the introduction of an account holder by name Dharman Panicker. In the Account Opening Form the address is given only as "Kaniyarath P.O. Kallisseri". Thus an absolutely vague address was given. The Bank made no enquiries as to the credit worthiness of the said K. Narayhanan or as to his full address or even about his telephone number. Thereafter even though initially the account was opened with only Rs. 20/- the exact amount of Rs. 80/- was deposited for purposes of receipt of a cheque book. The 1st Respondent bank does not seem to have put on its guard, even when a cheque for a very large amount i.e. Rs. 1,00,000/- was deposited soon thereafter. In cross-examination the Branch Manager admits that in the Account opening form neither the name nor the occupation of the person introducing had been filled up. He admits that no enquiry was made regarding the nature of business of K. Narayhanan or where the place of business was. Even after it was found out that that a cheque had been forged and stop payment notice had been issued, no enquiry was made by the Bank with the introducer. When asked why no enquiries were made, the answer given was that the bank has no responsibility to look into it. Another factor which mitigates against the 1st Respondent Bank is that it made no attempt to lead the evidence of the person who had introduced the account holder.14. It appears to us that the above mentioned facts discloses that the 1st Respondent bank has not discharged the burden which lay upon it to show that it had acted in good faith and without negligence.
### Response:
1
### Explanation:
From his evidence it is clear that the person who called himself K. Narayhanan opened an account on the introduction of an account holder by name Dharman Panicker. In the Account Opening Form the address is given only as "Kaniyarath P.O. Kallisseri". Thus an absolutely vague address was given. The Bank made no enquiries as to the credit worthiness of the said K. Narayhanan or as to his full address or even about his telephone number. Thereafter even though initially the account was opened with only Rs. 20/- the exact amount of Rs. 80/- was deposited for purposes of receipt of a cheque book. The 1st Respondent bank does not seem to have put on its guard, even when a cheque for a very large amount i.e. Rs. 1,00,000/- was deposited soon thereafter. In cross-examination the Branch Manager admits that in the Account opening form neither the name nor the occupation of the person introducing had been filled up. He admits that no enquiry was made regarding the nature of business of K. Narayhanan or where the place of business was. Even after it was found out that that a cheque had been forged and stop payment notice had been issued, no enquiry was made by the Bank with the introducer. When asked why no enquiries were made, the answer given was that the bank has no responsibility to look into it. Another factor which mitigates against the 1st Respondent Bank is that it made no attempt to lead the evidence of the person who had introduced the account holder.14. It appears to us that the above mentioned facts discloses that the 1st Respondent bank has not discharged the burden which lay upon it to show that it had acted in good faith and without negligence.
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Remington Rand of India Limited Vs. Tahir Ali Baifi and Another | mechanic in the appellant-company. On 23rd September, 1965 a charge-sheet was served on him on the ground that he sold one second-hand Godrej Standard typewriter to M/s. Jabalpur enterprises. The charge-sheet mentioned that he had transacted the business in the name of his brother, that the machine actually belonged to him and that he had carried on negotiations and concluded the transaction with the party mentioned. He was, therefore, charged for grave and serious misconduct for engaging himself in work similar in nature to that of the company under cl. 12A (29) of the companys standing orders. The 1st respondent denied the charge levelled against him and claimed that his brother had sold the typewriter and he had nothing to do with it and that the sale of one second-hand typewriter by his brother did not and cannot amount to carrying on business of selling typewriters, that even on the allegations there was no basis for charging him with misconduct under cl. 12A (29) of the standing orders. Therefore an enquiry was held and witnesses examined. Almost towards the end of the enquiry he was asked whether he would like to say anything and 1st respondent to be allowed to admit his guilt and also requested the management to take a lenient view of his lapse and reinstate him and allow him serve the company with all loyalty and sincerely. The enquiry officer held that the charge against the 1st respondent was made out and the regional manager of the appellant-company thereafter dismissed him.2. A reference was made by the Madhya Pradesh Government to the Labour Court at Jabalpur. The Labour Court held that as the statement of the workmen was recorded and he was asked to explain the charge levelled against him before all the prosecution evidence had been completed, it was serious infirmity and to that extent the domestic enquiry was vitiated. But on the basis of the evidence of witnesses produced by the employer the Labour Court held that the charge against the workman was proved. The Labour Court in particular stressed the fact that the 1st respondent not only sold the typewriter but also undertook to do service of the typewriter for one year, and it held that by selling a typewriter and undertaking to do service of that typewriter for one year the 1st respondent could be said to have engaged in work which was similar in nature to that of the company.3. The 1st respondent filed a petition before the High Court for quashing the award of the Labour Court. The High Court held that "engaging in any business" meant a continuity of transactions and not a single casual or solitary transaction and that, therefore, the 1st respondent by selling one second-hand typewriter could not be said to have contravened cl. (29) of the standing order or any of the terms of his employment. It was argued before the High Court that as the 1st respondent had undertaken to repair the typewriter for a period of one year he should hold to have engaged in business of repairing typewriter, which was also a business carried on by the company. This argument was rejected on the ground that it was not mentioned in the charge-sheet. In the result the award of Labour Court was quashed.4. We are of opinion that the High Courts conclusion were correct. The standing order in question which is alleged to have been contravened by the 1st respondent is as follows :"12A. Misconduct for commission of any of the following acts the punishment is summary dismissal.29 Engaging in any work similar in nature to that of the company and or in which he may for the time being to engage by the company."It would be noticed that the standing order consists of two parts, (1) engaging in any work similar in nature to that of the company and (2) engaging in any work in which he may for the time being be engaged by the company. Admittedly the 1st respondent was a mechanic employed by the company. The company is not engaged in the business of sale of typewriters but also in repairing typewriters. The fact of the 1st respondent having sold a second hand Godrej typewriter is established beyond doubt. But as rightly held by the High Court a single act of sale cannot be said to establish that the 1st respondent was engaging in the business of selling typewriters. Nor was it seriously argued on behalf of the appellant-company that a single act of sale would amount to the 1st respondent engaging in the business of typewriters. But it was said that he was engaging in the business of repairing typewriters thus engaging in work similar in nature to that of the company as also work in which he was engaged by the company. This was based on the fact that in the letter which the 1st respondent passed on to the buyer of the typewriter he undertook to do the repairs of the typewriter for one year. We do not think it can be said that the 1st respondent by undertaking to repair the typewriter which he had sold was engaging in the business of typewriter repairs. More important, that was not the charge against him. When in the charge-sheet served on the 1st respondent it was said that he had carried on negotiations and concluded the transaction, the transaction mentioned was the transaction of sale of the typewriter. There was nothing said about his having undertaken to repair the typewriter for a year. That the workman himself understood the charge-sheet as referring only to the transaction of sale is clear from the reply he gave in response to the charge-sheet served on him. In the circumstances, therefore, we agree with the High Court on this point also. The fact that the workman admitted his guilt is beside the point. He admitted his guilt only in the sense that he admitted having sold a second hand Godrej typewriter. | 0[ds]4. We are of opinion that the High Courts conclusion were correct. The standing order in question which is alleged to have been contravened by the 1st respondent is as follows :"12A. Misconduct for commission of any of the following acts the punishment is summary dismissal.29 Engaging in any work similar in nature to that of the company and or in which he may for the time being to engage by the company."It would be noticed that the standing order consists of two parts, (1) engaging in any work similar in nature to that of the company and (2) engaging in any work in which he may for the time being be engaged by the company. Admittedly the 1st respondent was a mechanic employed by the company. The company is not engaged in the business of sale of typewriters but also in repairing typewriters. The fact of the 1st respondent having sold a second hand Godrej typewriter is established beyond doubt. But as rightly held by the High Court a single act of sale cannot be said to establish that the 1st respondent was engaging in the business of selling typewriters. Nor was it seriously argued on behalf of thethat a single act of sale would amount to the 1st respondent engaging in the business of typewriters. But it was said that he was engaging in the business of repairing typewriters thus engaging in work similar in nature to that of the company as also work in which he was engaged by the company. This was based on the fact that in the letter which the 1st respondent passed on to the buyer of the typewriter he undertook to do the repairs of the typewriter for one year. We do not think it can be said that the 1st respondent by undertaking to repair the typewriter which he had sold was engaging in the business of typewriter repairs. More important, that was not the charge against him. When in theserved on the 1st respondent it was said that he had carried on negotiations and concluded the transaction, the transaction mentioned was the transaction of sale of the typewriter. There was nothing said about his having undertaken to repair the typewriter for a year. That the workman himself understood theas referring only to the transaction of sale is clear from the reply he gave in response to theserved on him. In the circumstances, therefore, we agree with the High Court on this point also. The fact that the workman admitted his guilt is beside the point. He admitted his guilt only in the sense that he admitted having sold a second hand Godrej typewriter. | 0 | 1,082 | 481 | ### Instruction:
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mechanic in the appellant-company. On 23rd September, 1965 a charge-sheet was served on him on the ground that he sold one second-hand Godrej Standard typewriter to M/s. Jabalpur enterprises. The charge-sheet mentioned that he had transacted the business in the name of his brother, that the machine actually belonged to him and that he had carried on negotiations and concluded the transaction with the party mentioned. He was, therefore, charged for grave and serious misconduct for engaging himself in work similar in nature to that of the company under cl. 12A (29) of the companys standing orders. The 1st respondent denied the charge levelled against him and claimed that his brother had sold the typewriter and he had nothing to do with it and that the sale of one second-hand typewriter by his brother did not and cannot amount to carrying on business of selling typewriters, that even on the allegations there was no basis for charging him with misconduct under cl. 12A (29) of the standing orders. Therefore an enquiry was held and witnesses examined. Almost towards the end of the enquiry he was asked whether he would like to say anything and 1st respondent to be allowed to admit his guilt and also requested the management to take a lenient view of his lapse and reinstate him and allow him serve the company with all loyalty and sincerely. The enquiry officer held that the charge against the 1st respondent was made out and the regional manager of the appellant-company thereafter dismissed him.2. A reference was made by the Madhya Pradesh Government to the Labour Court at Jabalpur. The Labour Court held that as the statement of the workmen was recorded and he was asked to explain the charge levelled against him before all the prosecution evidence had been completed, it was serious infirmity and to that extent the domestic enquiry was vitiated. But on the basis of the evidence of witnesses produced by the employer the Labour Court held that the charge against the workman was proved. The Labour Court in particular stressed the fact that the 1st respondent not only sold the typewriter but also undertook to do service of the typewriter for one year, and it held that by selling a typewriter and undertaking to do service of that typewriter for one year the 1st respondent could be said to have engaged in work which was similar in nature to that of the company.3. The 1st respondent filed a petition before the High Court for quashing the award of the Labour Court. The High Court held that "engaging in any business" meant a continuity of transactions and not a single casual or solitary transaction and that, therefore, the 1st respondent by selling one second-hand typewriter could not be said to have contravened cl. (29) of the standing order or any of the terms of his employment. It was argued before the High Court that as the 1st respondent had undertaken to repair the typewriter for a period of one year he should hold to have engaged in business of repairing typewriter, which was also a business carried on by the company. This argument was rejected on the ground that it was not mentioned in the charge-sheet. In the result the award of Labour Court was quashed.4. We are of opinion that the High Courts conclusion were correct. The standing order in question which is alleged to have been contravened by the 1st respondent is as follows :"12A. Misconduct for commission of any of the following acts the punishment is summary dismissal.29 Engaging in any work similar in nature to that of the company and or in which he may for the time being to engage by the company."It would be noticed that the standing order consists of two parts, (1) engaging in any work similar in nature to that of the company and (2) engaging in any work in which he may for the time being be engaged by the company. Admittedly the 1st respondent was a mechanic employed by the company. The company is not engaged in the business of sale of typewriters but also in repairing typewriters. The fact of the 1st respondent having sold a second hand Godrej typewriter is established beyond doubt. But as rightly held by the High Court a single act of sale cannot be said to establish that the 1st respondent was engaging in the business of selling typewriters. Nor was it seriously argued on behalf of the appellant-company that a single act of sale would amount to the 1st respondent engaging in the business of typewriters. But it was said that he was engaging in the business of repairing typewriters thus engaging in work similar in nature to that of the company as also work in which he was engaged by the company. This was based on the fact that in the letter which the 1st respondent passed on to the buyer of the typewriter he undertook to do the repairs of the typewriter for one year. We do not think it can be said that the 1st respondent by undertaking to repair the typewriter which he had sold was engaging in the business of typewriter repairs. More important, that was not the charge against him. When in the charge-sheet served on the 1st respondent it was said that he had carried on negotiations and concluded the transaction, the transaction mentioned was the transaction of sale of the typewriter. There was nothing said about his having undertaken to repair the typewriter for a year. That the workman himself understood the charge-sheet as referring only to the transaction of sale is clear from the reply he gave in response to the charge-sheet served on him. In the circumstances, therefore, we agree with the High Court on this point also. The fact that the workman admitted his guilt is beside the point. He admitted his guilt only in the sense that he admitted having sold a second hand Godrej typewriter.
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4. We are of opinion that the High Courts conclusion were correct. The standing order in question which is alleged to have been contravened by the 1st respondent is as follows :"12A. Misconduct for commission of any of the following acts the punishment is summary dismissal.29 Engaging in any work similar in nature to that of the company and or in which he may for the time being to engage by the company."It would be noticed that the standing order consists of two parts, (1) engaging in any work similar in nature to that of the company and (2) engaging in any work in which he may for the time being be engaged by the company. Admittedly the 1st respondent was a mechanic employed by the company. The company is not engaged in the business of sale of typewriters but also in repairing typewriters. The fact of the 1st respondent having sold a second hand Godrej typewriter is established beyond doubt. But as rightly held by the High Court a single act of sale cannot be said to establish that the 1st respondent was engaging in the business of selling typewriters. Nor was it seriously argued on behalf of thethat a single act of sale would amount to the 1st respondent engaging in the business of typewriters. But it was said that he was engaging in the business of repairing typewriters thus engaging in work similar in nature to that of the company as also work in which he was engaged by the company. This was based on the fact that in the letter which the 1st respondent passed on to the buyer of the typewriter he undertook to do the repairs of the typewriter for one year. We do not think it can be said that the 1st respondent by undertaking to repair the typewriter which he had sold was engaging in the business of typewriter repairs. More important, that was not the charge against him. When in theserved on the 1st respondent it was said that he had carried on negotiations and concluded the transaction, the transaction mentioned was the transaction of sale of the typewriter. There was nothing said about his having undertaken to repair the typewriter for a year. That the workman himself understood theas referring only to the transaction of sale is clear from the reply he gave in response to theserved on him. In the circumstances, therefore, we agree with the High Court on this point also. The fact that the workman admitted his guilt is beside the point. He admitted his guilt only in the sense that he admitted having sold a second hand Godrej typewriter.
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Kanika Goel Vs. State of NCT of Delhi and Ors | dated 20th August, 2018, merely takes note of the factual error committed in the judgment dated 20th July, 2018 in recording about the pendency of custody proceedings before the Family Court at New Delhi. That factual error has been ordered to be corrected vide the order dated 20th August, 2018 by deletion of the following words-"that the custody proceedings are pending before the Family Court at Patiala House, New Delhi" and also-"both parties shall cooperate for disposal of the case". That, however, does not mean that this Court has restrained the Appellant from reviving the proceedings for grant of custody of the minor girl child to her, being the mother. No such meaning can be deduced from the order dated 20th August, 2018. Whether such proceedings deserve to be entertained in law, is a matter to be decided by the concerned Court. The Respondent No. 2 cannot be heard to say that he is not liable to participate in such proceedings. 11. Suffice it to observe that no direction had been issued to the Appellant to return to the US along with the minor child M or, for that matter, to refrain from instituting fresh proceedings for reliefs as may be permissible by law, including in the Courts in India. We say no more lest it may influence the proceedings between the parties. 12. In our opinion, the principal relief claimed in these applications is based on the misplaced assumption that a direction has since been issued against the Appellant to return to the US along with the minor girl child M, and which the Appellant has failed to comply with. This assumption is a complete misreading of the decision rendered by this Court in the criminal appeals. For, no such direction has been given by this Court. On the contrary, the parties have been granted liberty to pursue proceedings against each other as may be permissible in law before the jurisdictional Court. 13. Be it noted that the dictum in the opening part of paragraph 39 of the judgment of this Court had been made in the backdrop of the discussion in the earlier part of the judgment, which clearly predicates that the proceedings before the Family Court at New Delhi should be taken to their logical and natural conclusion, expeditiously, in the first place and that the parties must eschew from pursuing parallel proceedings in two different countries for custody of the minor girl child. Thus understood, the main relief as claimed in the present applications must fail. 14. Reverting to the further relief claimed in the second part of prayer Clause (a) of the subject applications, the same must also fail, being intrinsically linked to the main prayer, which itself cannot be countenanced for the reasons already alluded hitherto. Furthermore, issuing such a direction in the disposed-of appeal is not only impermissible but would also be in conflict with the view expressed in paragraph 33, about the factum of the best interests and welfare of the minor girl child M. Paragraph 33 reads thus: 33. The High Court, in the present case, focused primarily on the grievances of the Appellant and while rejecting those grievances, went on to grant relief to Respondent 2 by directing return of the minor girl child to her native country. On the totality of the facts and circumstances of the present case, in our opinion, there is nothing to indicate that the native language (English) is not spoken or the child has been divorced from the social customs to which she has been accustomed. Similarly, the minor child had just entered pre-school in the USA before she came to New Delhi along with her mother. In that sense, there was no disruption of her education or being subjected to a foreign system of education likely to psychologically disturb her. On the other hand, the minor child M is under the due care of her mother and maternal grandparents and other relatives since her arrival in New Delhi. If she returns to US as per the relief claimed by Respondent 2, she would inevitably be under the care of a nanny as Respondent 2 will be away during the daytime for work and no one else from the family would be there at home to look after her. Placing her under a trained nanny may not be harmful as such but it is certainly avoidable. For, there is likelihood of the minor child being psychologically disturbed after her separation from her mother, who is the primary care giver to her. In other words, there is no compelling reason to direct return of the minor child M to the US as prayed by Respondent 2 nor is her stay in the company of her mother, along with maternal grandparents and extended family at New Delhi, prejudicial to her in any manner, warranting her return to the US. 15. Taking any view of the matter, therefore, the relief as articulated in these applications in prayer Clause (a), cannot be countenanced. As a result, these applications must fail. 16. The counsel for Respondent No. 2 had also argued other issues including about the conduct of the Appellant in filing of a fresh petition for custody of the minor child Under Section 26 of the Hindu Marriage Act before the Family Court, Patiala. House, New Delhi on 28th August, 2018. In our opinion, it is unnecessary to dilate on those contentions in the present applications. First, because this Court has become functus officio after the disposal of the criminal appeals and in any case, those issues have no bearing on the matter in issue under consideration. Second, this Court has not denuded the parties of their right to pursue remedies as may be permissible in law. Whether the stand taken in the pending proceedings or the fresh instituted, including the question of jurisdiction of the concerned Court in India, will have to be examined on its own merits and in accordance with law. We say no more. | 0[ds]On a fair reading, the order dated 20th August, 2018, merely takes note of the factual error committed in the judgment dated 20th July, 2018 in recording about the pendency of custody proceedings before the Family Court at New Delhi. That factual error has been ordered to be corrected vide the order dated 20th August, 2018 by deletion of the following words-"that the custody proceedings are pending before the Family Court at Patiala House, New Delhi" and also-"both parties shall cooperate for disposal of the case". That, however, does not mean that this Court has restrained the Appellant from reviving the proceedings for grant of custody of the minor girl child to her, being the mother. No such meaning can be deduced from the order dated 20th August, 2018. Whether such proceedings deserve to be entertained in law, is a matter to be decided by the concerned Court. The Respondent No. 2 cannot be heard to say that he is not liable to participate in such proceedings11. Suffice it to observe that no direction had been issued to the Appellant to return to the US along with the minor child M or, for that matter, to refrain from instituting fresh proceedings for reliefs as may be permissible by law, including in the Courts in India. We say no more lest it may influence the proceedings between the parties12. In our opinion, the principal relief claimed in these applications is based on the misplaced assumption that a direction has since been issued against the Appellant to return to the US along with the minor girl child M, and which the Appellant has failed to comply with. This assumption is a complete misreading of the decision rendered by this Court in the criminal appeals. For, no such direction has been given by this Court. On the contrary, the parties have been granted liberty to pursue proceedings against each other as may be permissible in law before the jurisdictional Court13. Be it noted that the dictum in the opening part of paragraph 39 of the judgment of this Court had been made in the backdrop of the discussion in the earlier part of the judgment, which clearly predicates that the proceedings before the Family Court at New Delhi should be taken to their logical and natural conclusion, expeditiously, in the first place and that the parties must eschew from pursuing parallel proceedings in two different countries for custody of the minor girl child. Thus understood, the main relief as claimed in the present applications must fail14. Reverting to the further relief claimed in the second part of prayer Clause (a) of the subject applications, the same must also fail, being intrinsically linked to the main prayer, which itself cannot be countenanced for the reasons already alluded hitherto. Furthermore, issuing such a direction in the disposed-of appeal is not only impermissible but would also be in conflict with the view expressed in paragraph 33, about the factum of the best interests and welfare of the minor girl child M15. Taking any view of the matter, therefore, the relief as articulated in these applications in prayer Clause (a), cannot be countenanced. As a result, these applications must failIn our opinion, it is unnecessary to dilate on those contentions in the present applications. First, because this Court has become functus officio after the disposal of the criminal appeals and in any case, those issues have no bearing on the matter in issue under consideration. Second, this Court has not denuded the parties of their right to pursue remedies as may be permissible in law. Whether the stand taken in the pending proceedings or the fresh instituted, including the question of jurisdiction of the concerned Court in India, will have to be examined on its own merits and in accordance with law. We say no more. | 0 | 3,500 | 716 | ### Instruction:
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dated 20th August, 2018, merely takes note of the factual error committed in the judgment dated 20th July, 2018 in recording about the pendency of custody proceedings before the Family Court at New Delhi. That factual error has been ordered to be corrected vide the order dated 20th August, 2018 by deletion of the following words-"that the custody proceedings are pending before the Family Court at Patiala House, New Delhi" and also-"both parties shall cooperate for disposal of the case". That, however, does not mean that this Court has restrained the Appellant from reviving the proceedings for grant of custody of the minor girl child to her, being the mother. No such meaning can be deduced from the order dated 20th August, 2018. Whether such proceedings deserve to be entertained in law, is a matter to be decided by the concerned Court. The Respondent No. 2 cannot be heard to say that he is not liable to participate in such proceedings. 11. Suffice it to observe that no direction had been issued to the Appellant to return to the US along with the minor child M or, for that matter, to refrain from instituting fresh proceedings for reliefs as may be permissible by law, including in the Courts in India. We say no more lest it may influence the proceedings between the parties. 12. In our opinion, the principal relief claimed in these applications is based on the misplaced assumption that a direction has since been issued against the Appellant to return to the US along with the minor girl child M, and which the Appellant has failed to comply with. This assumption is a complete misreading of the decision rendered by this Court in the criminal appeals. For, no such direction has been given by this Court. On the contrary, the parties have been granted liberty to pursue proceedings against each other as may be permissible in law before the jurisdictional Court. 13. Be it noted that the dictum in the opening part of paragraph 39 of the judgment of this Court had been made in the backdrop of the discussion in the earlier part of the judgment, which clearly predicates that the proceedings before the Family Court at New Delhi should be taken to their logical and natural conclusion, expeditiously, in the first place and that the parties must eschew from pursuing parallel proceedings in two different countries for custody of the minor girl child. Thus understood, the main relief as claimed in the present applications must fail. 14. Reverting to the further relief claimed in the second part of prayer Clause (a) of the subject applications, the same must also fail, being intrinsically linked to the main prayer, which itself cannot be countenanced for the reasons already alluded hitherto. Furthermore, issuing such a direction in the disposed-of appeal is not only impermissible but would also be in conflict with the view expressed in paragraph 33, about the factum of the best interests and welfare of the minor girl child M. Paragraph 33 reads thus: 33. The High Court, in the present case, focused primarily on the grievances of the Appellant and while rejecting those grievances, went on to grant relief to Respondent 2 by directing return of the minor girl child to her native country. On the totality of the facts and circumstances of the present case, in our opinion, there is nothing to indicate that the native language (English) is not spoken or the child has been divorced from the social customs to which she has been accustomed. Similarly, the minor child had just entered pre-school in the USA before she came to New Delhi along with her mother. In that sense, there was no disruption of her education or being subjected to a foreign system of education likely to psychologically disturb her. On the other hand, the minor child M is under the due care of her mother and maternal grandparents and other relatives since her arrival in New Delhi. If she returns to US as per the relief claimed by Respondent 2, she would inevitably be under the care of a nanny as Respondent 2 will be away during the daytime for work and no one else from the family would be there at home to look after her. Placing her under a trained nanny may not be harmful as such but it is certainly avoidable. For, there is likelihood of the minor child being psychologically disturbed after her separation from her mother, who is the primary care giver to her. In other words, there is no compelling reason to direct return of the minor child M to the US as prayed by Respondent 2 nor is her stay in the company of her mother, along with maternal grandparents and extended family at New Delhi, prejudicial to her in any manner, warranting her return to the US. 15. Taking any view of the matter, therefore, the relief as articulated in these applications in prayer Clause (a), cannot be countenanced. As a result, these applications must fail. 16. The counsel for Respondent No. 2 had also argued other issues including about the conduct of the Appellant in filing of a fresh petition for custody of the minor child Under Section 26 of the Hindu Marriage Act before the Family Court, Patiala. House, New Delhi on 28th August, 2018. In our opinion, it is unnecessary to dilate on those contentions in the present applications. First, because this Court has become functus officio after the disposal of the criminal appeals and in any case, those issues have no bearing on the matter in issue under consideration. Second, this Court has not denuded the parties of their right to pursue remedies as may be permissible in law. Whether the stand taken in the pending proceedings or the fresh instituted, including the question of jurisdiction of the concerned Court in India, will have to be examined on its own merits and in accordance with law. We say no more.
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### Explanation:
On a fair reading, the order dated 20th August, 2018, merely takes note of the factual error committed in the judgment dated 20th July, 2018 in recording about the pendency of custody proceedings before the Family Court at New Delhi. That factual error has been ordered to be corrected vide the order dated 20th August, 2018 by deletion of the following words-"that the custody proceedings are pending before the Family Court at Patiala House, New Delhi" and also-"both parties shall cooperate for disposal of the case". That, however, does not mean that this Court has restrained the Appellant from reviving the proceedings for grant of custody of the minor girl child to her, being the mother. No such meaning can be deduced from the order dated 20th August, 2018. Whether such proceedings deserve to be entertained in law, is a matter to be decided by the concerned Court. The Respondent No. 2 cannot be heard to say that he is not liable to participate in such proceedings11. Suffice it to observe that no direction had been issued to the Appellant to return to the US along with the minor child M or, for that matter, to refrain from instituting fresh proceedings for reliefs as may be permissible by law, including in the Courts in India. We say no more lest it may influence the proceedings between the parties12. In our opinion, the principal relief claimed in these applications is based on the misplaced assumption that a direction has since been issued against the Appellant to return to the US along with the minor girl child M, and which the Appellant has failed to comply with. This assumption is a complete misreading of the decision rendered by this Court in the criminal appeals. For, no such direction has been given by this Court. On the contrary, the parties have been granted liberty to pursue proceedings against each other as may be permissible in law before the jurisdictional Court13. Be it noted that the dictum in the opening part of paragraph 39 of the judgment of this Court had been made in the backdrop of the discussion in the earlier part of the judgment, which clearly predicates that the proceedings before the Family Court at New Delhi should be taken to their logical and natural conclusion, expeditiously, in the first place and that the parties must eschew from pursuing parallel proceedings in two different countries for custody of the minor girl child. Thus understood, the main relief as claimed in the present applications must fail14. Reverting to the further relief claimed in the second part of prayer Clause (a) of the subject applications, the same must also fail, being intrinsically linked to the main prayer, which itself cannot be countenanced for the reasons already alluded hitherto. Furthermore, issuing such a direction in the disposed-of appeal is not only impermissible but would also be in conflict with the view expressed in paragraph 33, about the factum of the best interests and welfare of the minor girl child M15. Taking any view of the matter, therefore, the relief as articulated in these applications in prayer Clause (a), cannot be countenanced. As a result, these applications must failIn our opinion, it is unnecessary to dilate on those contentions in the present applications. First, because this Court has become functus officio after the disposal of the criminal appeals and in any case, those issues have no bearing on the matter in issue under consideration. Second, this Court has not denuded the parties of their right to pursue remedies as may be permissible in law. Whether the stand taken in the pending proceedings or the fresh instituted, including the question of jurisdiction of the concerned Court in India, will have to be examined on its own merits and in accordance with law. We say no more.
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Montford Borthers Of St.Gabriel Vs. United India Insurance | to the conditions of the Indian society. Every legal representative who suffers on account of the death of a person due to a motor vehicle accident should have a remedy for realisation of compensation and that is provided by Sections 110-A to 110-F of the Act. These provisions are in consonance with the principles of law of torts that every injury must have a remedy. It is for the Motor Vehicles Accidents Tribunal to determine the compensation which appears to it to be just as provided in Section 110-B of the Act and to specify the person or persons to whom compensation shall be paid. The determination of the compensation payable and its apportionment as required by Section 110-B of the Act amongst the legal representatives for whose benefit an application may be filed under Section 110-A of the Act have to be done in accordance with well-known principles of law. We should remember that in an Indian family brothers, sisters and brothers’ children and some times foster children live together and they are dependent upon the bread-winner of the family and if the bread-winner is killed on account of a motor vehicle accident, there is no justification to deny them compensation relying upon the provisions of the Fatal Accidents Act, 1855 which as we have already held has been substantially modified by the provisions contained in the Act in relation to cases arising out of motor vehicles accidents. We express our approval of the decision in Megjibhai Khimji Vira v. Chaturbhai Taljabhai, (AIR 1977 Guj.195 ) and hold that the brother of a person who dies in a motor vehicle accident is entitled to maintain a petition under Section 110-A of the Act if he is a legal representative of the deceased.” 12. From the aforesaid quoted extract it is evident that only if there is a justification in consonance with principles of justice, equity and good conscience, a dependant of the deceased may be denied right to claim compensation. Hence, we find no merit in the submission advanced on behalf of the respondent-Insurance Company that the claim petition is not maintainable because of the provisions of the Fatal Accidents Act. 13. On behalf of the appellants it has been rightly contended that proceeding before the Motor Vehicle Claims Tribunal is a summary proceeding and unless there is evidence in support of such pleading that the claimant is not a legal representative and therefore the claim petition be dismissed as not maintainable, no such plea can be raised at a subsequent stage and that also through a writ petition. The objection filed on behalf of the Insurance Company, contained in annexure P.2, does not raise any such objection nor there is any evidence led on this issue. As noted earlier, the Tribunal did frame any issue regarding maintainability of the claim petition on law and fact as issue no.1 but the findings recorded by the Tribunal at page 41 of the paper book show that this issue together with issue nos. 2 and 3 were not pressed by the opposite parties during trial and were accordingly decided in favour of the claimants. 14. In the aforesaid circumstances, the order under appeal dated 20.8.2002 allowing the writ petition suffers from apparent mistake in not noticing the relevant issue decided by the Tribunal and also the fact that the Insurance Company, which was the writ petitioner, had not pressed this issue. It had neither raised pleadings nor led evidence relevant for the said issue. 15. On coming to know about the High Court judgment the appellants filed a review petition in which they gave all the relevant facts including the constitution of the society appellant no.1 in support of their claim that a `Brother’ of the Society renounced his relations with the natural family and all his earnings and belongings including insurance claims belonged to the society. These facts could not have been ignored by the High Court but even after noticing such facts the review petition was rejected. 16. A perusal of the judgment and order of the Tribunal discloses that although issue no.1 was not pressed and hence decided in favour of the claimants/appellants, while considering the quantum of compensation for the claimants the Tribunal adopted a very cautious approach and framed a question for itself as to what should be the criterion for assessing compensation in such case where the deceased was a Roman Catholic and joined the church services after denouncing his family, and as such having no actual dependants or earning? For answering this issue the Tribunal relied not only upon judgments of American and English Courts but also upon Indian judgments for coming to the conclusion that even a religious order or organization may suffer considerable loss due to death of a voluntary worker. The Tribunal also went on to decide who should be entitled for compensation as legal representative of the deceased and for that purpose it relied upon the Full Bench judgment of Patna High Court reported in AIR 1987 Pat. 239 , which held that the term `legal representative’ is wide enough to include even “intermeddlers” with the estate of a deceased. The Tribunal also referred to some Indian judgments in which it was held that successors to the trusteeship and trust property are legal representatives within the meaning of Section 2(11) of the Code of Civil Procedure. 17. In the light of the aforesaid discussions, we have no hesitation in holding that the High Court erred in law in setting aside the judgment of the learned Tribunal by ignoring the fact that the respondent-Insurance Company had not pressed issue no.1 nor it had pleaded and led evidence in respect to the said issue. The Court explained that the appellants were the legal representatives of the deceased. Such an issue of facts could not be decided by the High Court for the first time in a writ petition which could only be entertained under Article 227 of the Constitution for limited purpose. | 1[ds]The Act does not define the termut the Tribunal has noted in its judgment and order that clause (C) of Rule 2 of the Mizoram Motor Accident Claims Tribunal Rules, 1988, defines the term `legalas having the same meaning as assigned to it in clause (11) of Section 2 of the Code of Civil Procedure,is undeniable that a person claming to be a legal representative has the locus to maintain an application for compensation under Section 166 of the Act, either directly or through any agent, subject to result of a dispute raised by the other side on thisfeel that the view taken by the Gujarat High Court is in consonance with the principles of justice, equity and good conscience having regard to the conditions of the Indian society. Every legal representative who suffers on account of the death of a person due to a motor vehicle accident should have a remedy for realisation of compensation and that is provided by Sections 110-A to 110-F of the Act. These provisions are in consonance with the principles of law of torts that every injury must have a remedy. It is for the Motor Vehicles Accidents Tribunal to determine the compensation which appears to it to be just as provided in Section 110-B of the Act and to specify the person or persons to whom compensation shall be paid. The determination of the compensation payable and its apportionment as required by Section 110-B of the Act amongst the legal representatives for whose benefit an application may be filed under Section 110-A of the Act have to be done in accordance with well-known principles of law. We should remember that in an Indian family brothers, sisters andchildren and some times foster children live together and they are dependent upon the bread-winner of the family and if the bread-winner is killed on account of a motor vehicle accident, there is no justification to deny them compensation relying upon the provisions of the Fatal Accidents Act, 1855 which as we have already held has been substantially modified by the provisions contained in the Act in relation to cases arising out of motor vehicles accidents. We express our approval of the decision in Megjibhai Khimji Vira v. Chaturbhai Taljabhai, (AIR 1977 Guj.195 ) and hold that the brother of a person who dies in a motor vehicle accident is entitled to maintain a petition under Section 110-A of the Act if he is a legal representative of theis evident that only if there is a justification in consonance with principles of justice, equity and good conscience, a dependant of the deceased may be denied right to claim compensation. Hence, we find no merit in the submission advanced on behalf of the respondent-Insurance Company that the claim petition is not maintainable because of the provisions of the Fatal Accidents Act.The objection filed on behalf of the Insurance Company, contained in annexure P.2, does not raise any such objection nor there is any evidence led on this issue. As noted earlier, the Tribunal did frame any issue regarding maintainability of the claim petition on law and fact as issue no.1 but the findings recorded by the Tribunal at page 41 of the paper book show that this issue together with issue nos. 2 and 3 were not pressed by the opposite parties during trial and were accordingly decided in favour of thehad neither raised pleadings nor led evidence relevant for the saidfacts could not have been ignored by the High Court but even after noticing such facts the review petition waswhich it was held that successors to the trusteeship and trust property are legal representatives within the meaning of Section 2(11) of the Code of Civilhave no hesitation in holding that the High Court erred in law in setting aside the judgment of the learned Tribunal by ignoring the fact that the respondent-Insurance Company had not pressed issue no.1 nor it had pleaded and led evidence in respect to the said issue. The Court explained that the appellants were the legal representatives of the deceased. Such an issue of facts could not be decided by the High Court for the first time in a writ petition which could only be entertained under Article 227 of the Constitution for limited | 1 | 2,582 | 752 | ### 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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to the conditions of the Indian society. Every legal representative who suffers on account of the death of a person due to a motor vehicle accident should have a remedy for realisation of compensation and that is provided by Sections 110-A to 110-F of the Act. These provisions are in consonance with the principles of law of torts that every injury must have a remedy. It is for the Motor Vehicles Accidents Tribunal to determine the compensation which appears to it to be just as provided in Section 110-B of the Act and to specify the person or persons to whom compensation shall be paid. The determination of the compensation payable and its apportionment as required by Section 110-B of the Act amongst the legal representatives for whose benefit an application may be filed under Section 110-A of the Act have to be done in accordance with well-known principles of law. We should remember that in an Indian family brothers, sisters and brothers’ children and some times foster children live together and they are dependent upon the bread-winner of the family and if the bread-winner is killed on account of a motor vehicle accident, there is no justification to deny them compensation relying upon the provisions of the Fatal Accidents Act, 1855 which as we have already held has been substantially modified by the provisions contained in the Act in relation to cases arising out of motor vehicles accidents. We express our approval of the decision in Megjibhai Khimji Vira v. Chaturbhai Taljabhai, (AIR 1977 Guj.195 ) and hold that the brother of a person who dies in a motor vehicle accident is entitled to maintain a petition under Section 110-A of the Act if he is a legal representative of the deceased.” 12. From the aforesaid quoted extract it is evident that only if there is a justification in consonance with principles of justice, equity and good conscience, a dependant of the deceased may be denied right to claim compensation. Hence, we find no merit in the submission advanced on behalf of the respondent-Insurance Company that the claim petition is not maintainable because of the provisions of the Fatal Accidents Act. 13. On behalf of the appellants it has been rightly contended that proceeding before the Motor Vehicle Claims Tribunal is a summary proceeding and unless there is evidence in support of such pleading that the claimant is not a legal representative and therefore the claim petition be dismissed as not maintainable, no such plea can be raised at a subsequent stage and that also through a writ petition. The objection filed on behalf of the Insurance Company, contained in annexure P.2, does not raise any such objection nor there is any evidence led on this issue. As noted earlier, the Tribunal did frame any issue regarding maintainability of the claim petition on law and fact as issue no.1 but the findings recorded by the Tribunal at page 41 of the paper book show that this issue together with issue nos. 2 and 3 were not pressed by the opposite parties during trial and were accordingly decided in favour of the claimants. 14. In the aforesaid circumstances, the order under appeal dated 20.8.2002 allowing the writ petition suffers from apparent mistake in not noticing the relevant issue decided by the Tribunal and also the fact that the Insurance Company, which was the writ petitioner, had not pressed this issue. It had neither raised pleadings nor led evidence relevant for the said issue. 15. On coming to know about the High Court judgment the appellants filed a review petition in which they gave all the relevant facts including the constitution of the society appellant no.1 in support of their claim that a `Brother’ of the Society renounced his relations with the natural family and all his earnings and belongings including insurance claims belonged to the society. These facts could not have been ignored by the High Court but even after noticing such facts the review petition was rejected. 16. A perusal of the judgment and order of the Tribunal discloses that although issue no.1 was not pressed and hence decided in favour of the claimants/appellants, while considering the quantum of compensation for the claimants the Tribunal adopted a very cautious approach and framed a question for itself as to what should be the criterion for assessing compensation in such case where the deceased was a Roman Catholic and joined the church services after denouncing his family, and as such having no actual dependants or earning? For answering this issue the Tribunal relied not only upon judgments of American and English Courts but also upon Indian judgments for coming to the conclusion that even a religious order or organization may suffer considerable loss due to death of a voluntary worker. The Tribunal also went on to decide who should be entitled for compensation as legal representative of the deceased and for that purpose it relied upon the Full Bench judgment of Patna High Court reported in AIR 1987 Pat. 239 , which held that the term `legal representative’ is wide enough to include even “intermeddlers” with the estate of a deceased. The Tribunal also referred to some Indian judgments in which it was held that successors to the trusteeship and trust property are legal representatives within the meaning of Section 2(11) of the Code of Civil Procedure. 17. In the light of the aforesaid discussions, we have no hesitation in holding that the High Court erred in law in setting aside the judgment of the learned Tribunal by ignoring the fact that the respondent-Insurance Company had not pressed issue no.1 nor it had pleaded and led evidence in respect to the said issue. The Court explained that the appellants were the legal representatives of the deceased. Such an issue of facts could not be decided by the High Court for the first time in a writ petition which could only be entertained under Article 227 of the Constitution for limited purpose.
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The Act does not define the termut the Tribunal has noted in its judgment and order that clause (C) of Rule 2 of the Mizoram Motor Accident Claims Tribunal Rules, 1988, defines the term `legalas having the same meaning as assigned to it in clause (11) of Section 2 of the Code of Civil Procedure,is undeniable that a person claming to be a legal representative has the locus to maintain an application for compensation under Section 166 of the Act, either directly or through any agent, subject to result of a dispute raised by the other side on thisfeel that the view taken by the Gujarat High Court is in consonance with the principles of justice, equity and good conscience having regard to the conditions of the Indian society. Every legal representative who suffers on account of the death of a person due to a motor vehicle accident should have a remedy for realisation of compensation and that is provided by Sections 110-A to 110-F of the Act. These provisions are in consonance with the principles of law of torts that every injury must have a remedy. It is for the Motor Vehicles Accidents Tribunal to determine the compensation which appears to it to be just as provided in Section 110-B of the Act and to specify the person or persons to whom compensation shall be paid. The determination of the compensation payable and its apportionment as required by Section 110-B of the Act amongst the legal representatives for whose benefit an application may be filed under Section 110-A of the Act have to be done in accordance with well-known principles of law. We should remember that in an Indian family brothers, sisters andchildren and some times foster children live together and they are dependent upon the bread-winner of the family and if the bread-winner is killed on account of a motor vehicle accident, there is no justification to deny them compensation relying upon the provisions of the Fatal Accidents Act, 1855 which as we have already held has been substantially modified by the provisions contained in the Act in relation to cases arising out of motor vehicles accidents. We express our approval of the decision in Megjibhai Khimji Vira v. Chaturbhai Taljabhai, (AIR 1977 Guj.195 ) and hold that the brother of a person who dies in a motor vehicle accident is entitled to maintain a petition under Section 110-A of the Act if he is a legal representative of theis evident that only if there is a justification in consonance with principles of justice, equity and good conscience, a dependant of the deceased may be denied right to claim compensation. Hence, we find no merit in the submission advanced on behalf of the respondent-Insurance Company that the claim petition is not maintainable because of the provisions of the Fatal Accidents Act.The objection filed on behalf of the Insurance Company, contained in annexure P.2, does not raise any such objection nor there is any evidence led on this issue. As noted earlier, the Tribunal did frame any issue regarding maintainability of the claim petition on law and fact as issue no.1 but the findings recorded by the Tribunal at page 41 of the paper book show that this issue together with issue nos. 2 and 3 were not pressed by the opposite parties during trial and were accordingly decided in favour of thehad neither raised pleadings nor led evidence relevant for the saidfacts could not have been ignored by the High Court but even after noticing such facts the review petition waswhich it was held that successors to the trusteeship and trust property are legal representatives within the meaning of Section 2(11) of the Code of Civilhave no hesitation in holding that the High Court erred in law in setting aside the judgment of the learned Tribunal by ignoring the fact that the respondent-Insurance Company had not pressed issue no.1 nor it had pleaded and led evidence in respect to the said issue. The Court explained that the appellants were the legal representatives of the deceased. Such an issue of facts could not be decided by the High Court for the first time in a writ petition which could only be entertained under Article 227 of the Constitution for limited
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Indian Oil Corporation Limited & Another Vs. Kerala State Road Trading Corporation & Others | the aforesaid paragraphs. Thus, it was decided by the Government of India, not to the extend subsidy to bulk consumers; same could not be said to be an arbitrary decision, discriminatory or in violation of the principles contained in Article 14 of the Constitution of India. 17. Such policy decisions are not amenable to judicial review. In State of Rajasthan v. J.K. Udaipur Udyog Ltd. (2004) 7 SCC 673 , this Court has observed that exemption is a privilege. In fiscal matters the concession granted by the State Government to the beneficiaries cannot confer upon them legally enforceable right against the Government to grant a concession, except to enjoy the benefits of the concession during the period of its grant. Enjoyment is defeasible one and can be taken away in exercise of very power under which such exemption was granted. This Court observed : "25. An exemption is by definition a freedom from an obligation which the exemptee is otherwise liable to discharge. It is a privilege granting an advantage not available to others. An exemption granted under a statutory provision in a fiscal statute has been held to be a concession granted by the State Government so that the beneficiaries of such concession are not required to pay the tax or duty they are otherwise liable to pay under such statute. The recipient of a concession has no legally enforceable right against the Government to grant of a concession except to enjoy the benefits of the concession during the period of its grant. This right to enjoy is a defeasible one in the sense that it may be taken away in exercise of the very power under which the exemption was granted. (See Shri Bakul Oil Industries v. State of Gujarat (1987) 1 SCC 31 , Kasinka Trading v. Union of India (1995) 1 SCC 274 and Shrijee Sales Corporation v. Union of India (1997) 3 SCC 398 )." 18. Similarly, this Court in Shree Sidhbali Steels Ltd. v. State of Uttar Pradesh & Ors. 2012(1) R.C.R.(Civil) 663 : (2011) 3 SCC 193 with respect to rebate has observed that it is a privilege granted in the form of an advantage. Concession granted by the State Government under section 49 of the Electricity Act, 1948 could be enjoyed during the period of its grant. It was defeasible one and was liable to be taken away or withdrawn the way in which it was granted. The Court observed : "48. From the principle enunciated in the abovementioned decision in Udaipur Udyog case (2004) 7 SCC 673 , there is no manner of doubt that the rebate which was granted to the Petitioners, was, by definition, a freedom from an obligation which the appellants otherwise were liable to discharge. The rebate was a privilege granting an advantage which was not made available to others. The rebate granted under Section 49 of the Electricity (Supply) Act of 1948 was, therefore, a concession granted by the State Government so that the beneficiaries of such concessions were not required to pay the electricity tariff they were otherwise liable to pay under the said Act during the period of its grant. The petitioners, as recipients of a concession, accepted to enjoy the benefits of the concession during the period of its grant. This right to enjoy was a defensible one in the sense that it was liable to be taken away or withdrawn in exercise of the very power under which the exemption was granted." 19. This Court in Ayurved Shastra Seva Mandal & Anr. v. Union of India & Ors. 2013(2) S.C.T. 675 : (2013) 16 SCC 696 held that the privilege granted to candidates in the matter of education could not be transformed into a right. In Madras City Wine Merchants Association & Anr. v. State of T.N. & Anr. (1994) 5 SCC 509 , this Court observed that a privilege exists during the period it is operative or its validity and not beyond it. In Har Shankar & Ors. v. The Dy. Excise & Taxation Commissioner & Ors. (1975) 1 SCC 737 it was held that when a matter is that of privilege, it cannot be enforced as a right. 20. Thus, we find no merit in the submissions raised that subsidy should have been continued as an exception for the State Road Transport Corporations, though they may have been rendering public service. However, for the purpose of such public services corporation cannot claim as of right that Government of India or the State Government should continue or grant the subsidy. It cannot be claimed as a matter of right; no such right exists to claim the subsidy. The Court cannot interfere in such matters.21. However, with respect to the State of Kerala, we find that in the interim order, that was passed before transfer of case to this Court, the State of Kerala has undertaken to reimburse the deficit amount to respondents Nos.2 and 3 in the event of the writ petition being dismissed ultimately; the same was recorded by the High Court: - "The balance of convenience will be in favour of granting an interim order as it will be impossible to reimburse the excess collected from the traveling public in the event of the writ petition being allowed eventually. The State Government on the other hand guarantees to reimburse the deficit amount to respondents 2 and 3 in the event of the writ petition being dismissed ultimately and the same is recorded". 22. With respect to other states, suffice it to observe that it would be open to the respective parties to work out equities as may be considered appropriate by them, otherwise payment has to be made by the bulk consumers to the Oil Marketing Companies (OMCs).23. It was also stated in the matters of the State of Karnataka and State of Tamil Nadu, that there was no interim order and the concerned Transport Corporations of the States have incurred no liability. The statement is placed on record. | 0[ds]16. Firstly, coming to the issue of the policy framed by the Government of India; the grant of subsidy is a matter of privilege, to be extended by the Government. It cannot be claimed as of right. No writ lies for extending or continuing the benefit of privilege in the form of concession. Subsidy is the matter of fiscal policy. Such privilege can be withdrawn at any time is the settled proposition of law. Thus, it was open to the Government of India to take a decision to withdraw the subsidy enjoyed by the bulk consumers; and, it was a decision based upon the aforestated rationale to direct funds for social welfare scheme for common man and that by grant of subsidy, the OMCs had suffered heavy losses, and had borrowed the excessive money to the extent indicated in the aforesaid paragraphs. Thus, it was decided by the Government of India, not to the extend subsidy to bulk consumers; same could not be said to be an arbitrary decision, discriminatory or in violation of the principles contained in Article 14 of the Constitution of India.Thus, we find no merit in the submissions raised that subsidy should have been continued as an exception for the State Road Transport Corporations, though they may have been rendering public service. However, for the purpose of such public services corporation cannot claim as of right that Government of India or the State Government should continue or grant the subsidy. It cannot be claimed as a matter of right; no such right exists to claim the subsidy. The Court cannot interfere in such matters.21. However, with respect to the State of Kerala, we find that in the interim order, that was passed before transfer of case to this Court, the State of Kerala has undertaken to reimburse the deficit amount to respondents Nos.2 and 3 in the event of the writ petition being dismissedWith respect to other states, suffice it to observe that it would be open to the respective parties to work out equities as may be considered appropriate by them, otherwise payment has to be made by the bulk consumers to the Oil Marketing Companies (OMCs).23. It was also stated in the matters of the State of Karnataka and State of Tamil Nadu, that there was no interim order and the concerned Transport Corporations of the States have incurred no liability. The statement is placed on record. | 0 | 3,567 | 451 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
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the aforesaid paragraphs. Thus, it was decided by the Government of India, not to the extend subsidy to bulk consumers; same could not be said to be an arbitrary decision, discriminatory or in violation of the principles contained in Article 14 of the Constitution of India. 17. Such policy decisions are not amenable to judicial review. In State of Rajasthan v. J.K. Udaipur Udyog Ltd. (2004) 7 SCC 673 , this Court has observed that exemption is a privilege. In fiscal matters the concession granted by the State Government to the beneficiaries cannot confer upon them legally enforceable right against the Government to grant a concession, except to enjoy the benefits of the concession during the period of its grant. Enjoyment is defeasible one and can be taken away in exercise of very power under which such exemption was granted. This Court observed : "25. An exemption is by definition a freedom from an obligation which the exemptee is otherwise liable to discharge. It is a privilege granting an advantage not available to others. An exemption granted under a statutory provision in a fiscal statute has been held to be a concession granted by the State Government so that the beneficiaries of such concession are not required to pay the tax or duty they are otherwise liable to pay under such statute. The recipient of a concession has no legally enforceable right against the Government to grant of a concession except to enjoy the benefits of the concession during the period of its grant. This right to enjoy is a defeasible one in the sense that it may be taken away in exercise of the very power under which the exemption was granted. (See Shri Bakul Oil Industries v. State of Gujarat (1987) 1 SCC 31 , Kasinka Trading v. Union of India (1995) 1 SCC 274 and Shrijee Sales Corporation v. Union of India (1997) 3 SCC 398 )." 18. Similarly, this Court in Shree Sidhbali Steels Ltd. v. State of Uttar Pradesh & Ors. 2012(1) R.C.R.(Civil) 663 : (2011) 3 SCC 193 with respect to rebate has observed that it is a privilege granted in the form of an advantage. Concession granted by the State Government under section 49 of the Electricity Act, 1948 could be enjoyed during the period of its grant. It was defeasible one and was liable to be taken away or withdrawn the way in which it was granted. The Court observed : "48. From the principle enunciated in the abovementioned decision in Udaipur Udyog case (2004) 7 SCC 673 , there is no manner of doubt that the rebate which was granted to the Petitioners, was, by definition, a freedom from an obligation which the appellants otherwise were liable to discharge. The rebate was a privilege granting an advantage which was not made available to others. The rebate granted under Section 49 of the Electricity (Supply) Act of 1948 was, therefore, a concession granted by the State Government so that the beneficiaries of such concessions were not required to pay the electricity tariff they were otherwise liable to pay under the said Act during the period of its grant. The petitioners, as recipients of a concession, accepted to enjoy the benefits of the concession during the period of its grant. This right to enjoy was a defensible one in the sense that it was liable to be taken away or withdrawn in exercise of the very power under which the exemption was granted." 19. This Court in Ayurved Shastra Seva Mandal & Anr. v. Union of India & Ors. 2013(2) S.C.T. 675 : (2013) 16 SCC 696 held that the privilege granted to candidates in the matter of education could not be transformed into a right. In Madras City Wine Merchants Association & Anr. v. State of T.N. & Anr. (1994) 5 SCC 509 , this Court observed that a privilege exists during the period it is operative or its validity and not beyond it. In Har Shankar & Ors. v. The Dy. Excise & Taxation Commissioner & Ors. (1975) 1 SCC 737 it was held that when a matter is that of privilege, it cannot be enforced as a right. 20. Thus, we find no merit in the submissions raised that subsidy should have been continued as an exception for the State Road Transport Corporations, though they may have been rendering public service. However, for the purpose of such public services corporation cannot claim as of right that Government of India or the State Government should continue or grant the subsidy. It cannot be claimed as a matter of right; no such right exists to claim the subsidy. The Court cannot interfere in such matters.21. However, with respect to the State of Kerala, we find that in the interim order, that was passed before transfer of case to this Court, the State of Kerala has undertaken to reimburse the deficit amount to respondents Nos.2 and 3 in the event of the writ petition being dismissed ultimately; the same was recorded by the High Court: - "The balance of convenience will be in favour of granting an interim order as it will be impossible to reimburse the excess collected from the traveling public in the event of the writ petition being allowed eventually. The State Government on the other hand guarantees to reimburse the deficit amount to respondents 2 and 3 in the event of the writ petition being dismissed ultimately and the same is recorded". 22. With respect to other states, suffice it to observe that it would be open to the respective parties to work out equities as may be considered appropriate by them, otherwise payment has to be made by the bulk consumers to the Oil Marketing Companies (OMCs).23. It was also stated in the matters of the State of Karnataka and State of Tamil Nadu, that there was no interim order and the concerned Transport Corporations of the States have incurred no liability. The statement is placed on record.
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16. Firstly, coming to the issue of the policy framed by the Government of India; the grant of subsidy is a matter of privilege, to be extended by the Government. It cannot be claimed as of right. No writ lies for extending or continuing the benefit of privilege in the form of concession. Subsidy is the matter of fiscal policy. Such privilege can be withdrawn at any time is the settled proposition of law. Thus, it was open to the Government of India to take a decision to withdraw the subsidy enjoyed by the bulk consumers; and, it was a decision based upon the aforestated rationale to direct funds for social welfare scheme for common man and that by grant of subsidy, the OMCs had suffered heavy losses, and had borrowed the excessive money to the extent indicated in the aforesaid paragraphs. Thus, it was decided by the Government of India, not to the extend subsidy to bulk consumers; same could not be said to be an arbitrary decision, discriminatory or in violation of the principles contained in Article 14 of the Constitution of India.Thus, we find no merit in the submissions raised that subsidy should have been continued as an exception for the State Road Transport Corporations, though they may have been rendering public service. However, for the purpose of such public services corporation cannot claim as of right that Government of India or the State Government should continue or grant the subsidy. It cannot be claimed as a matter of right; no such right exists to claim the subsidy. The Court cannot interfere in such matters.21. However, with respect to the State of Kerala, we find that in the interim order, that was passed before transfer of case to this Court, the State of Kerala has undertaken to reimburse the deficit amount to respondents Nos.2 and 3 in the event of the writ petition being dismissedWith respect to other states, suffice it to observe that it would be open to the respective parties to work out equities as may be considered appropriate by them, otherwise payment has to be made by the bulk consumers to the Oil Marketing Companies (OMCs).23. It was also stated in the matters of the State of Karnataka and State of Tamil Nadu, that there was no interim order and the concerned Transport Corporations of the States have incurred no liability. The statement is placed on record.
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Ksl & Industries Ltd Vs. M/S. Arihant Threads Ltd. | that the provisions of the said Act were to prevail even over the provisions of the Sick Companies Act...... .... ...... .....It is a settled rule of interpretation that if one constructions leads to a conflict, whereas on another construction, two Acts can be harmoniously constructed then the latter must be adopted. If an interpretation is given that the Sick Industrial Companies (Special Provisions) Act, 1985, is to prevail then there would be a clear conflict. However, there would be no conflict if it is held that the 1992 Act is to prevail. On such an interpretation the objects of both would be fulfilled and there would be no conflict. It is clear that the Legislature intended that public monies should be recovered first even from sick companies. Provided the sick company was in a position to first pay back the public money, there would be no difficulty in reconstruction. The Board for Industrial and Financial Reconstruction considering a scheme for reconstruction has to keep in mind the fact that it is to be paid off or directed by the Special Court. The Special Court can, if it is convinced, grant time or instalments." 65. Approving the above observations, this Court stated: "We are in agreement with the aforesaid decision of the case, more so when we find that whenever the legislature wishes to do so it makes appropriate provisions in the Act in that behalf. Mr. Shiraz Rustomjee has drawn our attention to Section 34 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 wherein after giving an overriding effect to the 1993 Act it is specifically provided that the said Act will be in addition to and not in derogation of a number of other Acts including the 1985 Act. Similarly under Section 32 of the 1985 Act the applicability of the Foreign Exchange Regulation Act and the Urban Land Ceiling Act is not excluded." Legal position 66. From the above discussion, in my judgment, the law is fairly well settled. A provision beginning with non-obstante clause ("notwithstanding anything inconsistent contained therein in any other law for the time being in force") must be enforced and implemented by giving effect to the provisions of the Act and by limiting the provisions of other laws. But, it cannot be gainsaid that sometimes one may come across two or more enactments containing similar non-obstante clause operating in the same or similar direction. Obviously, in such cases, the Court must attempt to find out the intention of the Legislature by examining the nature of controversy, object of the Act, proceedings initiated, relief sought and several other relevant considerations. From the case-law referred to above, it is clear that Courts have applied several workable tests. They, inter alia, include to keep in view whether the Act is ‘general or ‘special, whether the Act is a subsequent legislation, whether there is reference to the former law and the non-obstante clause therein. The above tests are merely illustrative and by no means they should be considered as exhaustive. It is for the Court when it is called upon to resolve such conflict by harmoniously interpreting the provision of both the competing statutes and by giving effect to one over the other. Primacy of RDDB Act 67. Applying the above tests in the instance case, to me, it is crystal clear that the provisions of RDDB Act should be given priority and primacy over SICA. I may concede that both the Acts are ‘special Acts in the sense that they have been enacted for a specific purpose and object in view. Whereas SICA has been enacted in the public interest with a view to securing the timely detection of sick or potentially sick companies owning industrial undertakings, the speedy determination by a Board of Experts of the preventive, ameliorative, remedial and other measures which need to be taken with respect to such companies and the expeditious enforcement of the measures so determined and for matters connected therewith or incidental thereto, RDDB Act has been enacted to secure and protect public revenue and for expeditious adjudication and recovery of debts due to banks and financial institutions. RDDB Act is subsequent Act in the point of time being 1993 Act. It must, therefore, be presumed even in absence of any specific provision in the 1993 Act that Parliament was aware of all statutes which had been enacted prior to 1993 including SICA of 1985. In spite of that, in sub-section (1) of Section 34 of RDDB Act, non-obstante clause has been inserted so as to ensure expeditious adjudication and recovery of debts due to banks and financial institutions. 68. But it is not only on the ground that the RDDB Act is a later Act and SICA is a former Act that I am holding that the RDDB Act will prevail over SICA. There is an additional factor also which is of extreme importance and supports the view which I am inclined to take. It is sub-section (2) of Section 34. To recall, sub-section (2) of Section 34 of RDDB Act declares that the provisions of this Act (RDDB Act of 1993) are "in addition to and not in derogation of", certain enactments referred to in the said sub-section. SICA has been expressly mentioned in the said sub-section. As already adverted to earlier, RDDB Act, 1993 has been enacted with a view "to provide for the establishment of the Tribunals for expeditious adjudication and recovery of debts due to banks and financial institutions" (Preamble of the Act). All other laws, therefore, whether general or special, prior or subsequent, must, in my considered view, be interpreted and applied keeping in view the above object of enacting 1993 Act. I have, therefore, no hesitation in holding that even though both the conflicting statutes, (SICA of 1985 and RDDB Act of 1993) contain non-obstante clause, in case of conflict, RDDB Act, 1993 will prevail over SICA, 1985 so far as recovery of public revenue is concerned. | 1[ds]27. The Courtword "suit" and "proceeding" have not been used interchangeably in SICA.Referring to Pandurang R. Mandlik v. Shantibai R. Ghatge, 1989 Supp (2) SCC 627, the Court observed that in its comprehensive sense, the word ‘suit is understood to apply to any proceeding in a Court of Justice by which an individual pursues a remedy which the law affords. The modes of proceedings may be various, but if a right is litigated between parties in a Court of Justice, the proceedings by which the decision of the Court is sought may be a suit. The word ‘suit ordinarily means and, apart from some context, must be taken to mean a civil proceeding instituted by the presentation of a plaint". (vide Hansraj Gupta v. Dehra Dun - Mussoorie Electric Trameray Co. Ltd.; 60 IA 13 : AIR 1933 PC 63 ).29. In the instant case, proceedings had been initiated by the Bank not before a Civil Court by invoking Section 9 of the Code of Civil Procedure, 1908, but before DRT by taking recourse to jurisdiction under RDDB Act. It is, therefore, contended that the proceedings could not be said to be a "suit" falling within the mischief of Section 22 of SICA. In any case, according to the learned counsel for the appellant, ex parte final order was passed by DRT as back as on July 15, 2003 and hence even if it is assumed that the connotation "suit" should be construed liberally so as to take within its sweep all proceedings including an application before DRT, in view of final order passed by DRT in 2003, bar envisaged by Section 22 of SICA cannot operate.30. So far as "proceedings" are concerned, it was submitted by the appellant that the final order had been passed by DRT under RDDB Act. A Certificate had been issued under Section 19 and in accordance with Section 29 of the Act, procedure laid down in Second and Third Schedules to the Income Tax Act, 1961 had been followed. Reserve price was fixed. Sale-proclamation was published. Auction was held. The appellant was found to be the highest bidder and its bid was accepted. Necessary amount was deposited. All actions were thus in conformity with law. If the Company felt aggrieved by auction sale, it ought to have proceeded in accordance with Rules 60 to 62 of the Rules in the Second Schedule. Rule 60 permits a person adversely affected by the sale to apply to the Tax Recovery Officer within thirty days from the date of sale to set aside such sale on his depositing the entire amount with interest thereon and penalty. Admittedly, the Company did not avail the said remedy. Rule 61 allows an application to set aside sale of immovable property on the ground of non-service of notice or material irregularity in publishing or conducting the sale. The said rule also provides for deposit of amount recoverable under the Certificate. The Company failed to do so. Under Rule 62, sale can be set aside when defaulter has no saleable interest. No such case had been put forward by the Company by applying under Rule 62. The Company, therefore, could not make grievance against the auction sale.31. Strong reliance was placed on behalf of the appellant on Rule 63 which states that where no application is made for setting aside the sale or where such application is made and is dismissed, the Tax Recovery Officer shall make an order confirming the sale and thereupon the sale shall become absolute. It was submitted that none of the Rules had been invoked by the Company by applying to the Tax Recovery Officer and by depositing the amount. The Tax Recovery Officer, hence, was enjoined to confirm sale as per the mandate of Rule 63. An appeal filed by the Company under Section 30 of RDDB Act before DRT against the order of Tax Recovery Officer fixing reserve price was ill-conceived and not maintainable as there was no ‘order within the meaning of RDDB Act which was appealable. Attention of the Court in this connection was invited by the learned counsel to Rule 53 [Contents of proclamation]. It provides that a proclamation of sale shall specify, inter alia, "the reserve price, if any, below which the property may not be sold" [Clause (cc)]. It was submitted that fixation of ‘reserve price is not mandatory, condition precedent or sine qua non and if reserve price is not fixed, the order cannot be said to be non est, contrary to law or unlawful. In any case, when reserve price was fixed and property was sold not below such price, the only remedy available to the Company or any person whose interest was affected was to apply under Rule 60 or 61 or 62. The appeal before DRT was thus totally misconceived and ought not to have been entertained by the Tribunal.32. According to the Company, reserve price was grossly inadequate. The Company was aggrieved and preferred an appeal under Section 30 of RDDB Act as the order fixing reserve price was also an ‘order within the meaning of the Act. To buttress the submission, the counsel relied upon a decision of this Court in Union of India & Anr. v. Delhi High Court Bar Association & Ors., (2002) 4 SCC 275. In Delhi High Court Bar Association, while upholding the validity of RDDB Act, this Court considered various safeguards and remedies available to the aggrieved party. In paragraph 30 of the decision, it was inter alia observed;Furthermore, Section 30, after amendment by the Amendment Act, 2000, gives a right to any person aggrieved by an order of the Recovery Officer, to prefer an appeal to the Tribunal. Thus now an appellate forum has been provided against any orders of the Recovery Officer which may not be in accordance with law. There is, therefore, sufficient safeguard which has been provided in the event of the Recovery Officer acting in an arbitrary or an unreasonable manner. The provisions of Sections 25 and 28 are, therefore, not bad in law.33. I express no opinion one way or the other on the controversy. As noted earlier, the High Court allowed the petitions filed by the Company only on the ground of bar of Section 22 of SICA. Since I am of the view that the High Court was not right in coming to that conclusion, the matter must go back to the High Court for deciding all points not dealt and decided.34. The learned counsel for the Company emphatically argued that Section 32 of SICA is explicitly clear and uses non-obstante clause ("Notwithstanding anything inconsistent therewith contained in any other law"). It was urged that SICA is a ‘self-contained Code and makes detailed and exhaustive provisions in respect of sick companies. It is also a ‘special law and effect must be given to the provisions of the Act. The argument of the appellant on the other hand is that Section 34 of RDDB Act is a subsequent legislation which also contains a similar non-obstante clause and that Act should prevail over SICA.35. The learned counsel for the parties, in support of their respective submissions, referred to several decisions. Let us consider few of them.36. In Maharashtra Tubes Ltd. v. State Industrial & Investment Corporation of Maharashtra Ltd. & Anr., (1993) 2 SCC 144 , this Court was called upon to consider the provisions of SICA and State Financial Corporation Act, 1951. Observing that the word ‘proceedings in sub-section (1) of Section 22 of SICA could not be given narrow or restricted meaning to limit the legal proceedings, the Court held that if Section 22(1) is attracted, the proceedings must be held to be barred.37. Keeping in view the underlying object of enacting SICA, the Court stated;Now we come to the impugned decision. The High Court was considerably influenced by the fact that the appellant-company owed crores of rupees to banks and felt that so far as such creditors are concerned, different considerations may come into play but the High Court with respect failed to appreciate that the 1985 Act was enacted primarily to assist sick industrial undertakings which inter alia failed to meet their financial obligations. It is, therefore, difficult to accept the view of the High Court that where the creditors of a sick industrial concern happen to be Banks or State Financial Corporations different considerations would come into play. It must be realised that in the modern industrial environment large industries are generally financed by banks and statutory corporations created specially for that purpose and if they are permitted to resort to independent action in total disregard of the pending inquiry under Sections 15 to 19 of the 1985 Act the entire exercise under the said provisions would be rendered nugatory by the time the BIFR is able to evolve a scheme of revival or rehabilitation of the sick industrial concern by : device of the Financial Corporation resorting to Section 29 of the 1951 Act. We are, therefore, of the opinion that where an inquiry is pending under Section 16/17 or an appeal is pending under Section 25 of the 1985 Act there should be cessation of the coercive activities of the type mentioned in Section 22 (1) to permit the BIFR to consider what remedial measures it should take with respect to the sick industrial company. The expression proceedings in Section 22(1), therefore, cannot be confined to legal proceedings understood in the narrow sense of proceedings in a Court of law or a legal tribunal for attachment and sale of the debtors property.38. In Deputy Commercial Tax Officer & Ors. v. Corromandal Pharmaceuticals & Ors., (1997) 10 SCC 649 , this Court held that the embargo under Section 22(1) would not apply to payment of tax collected by the sick industrial company after the date of the sanctioned scheme and legitimately belonged to the Revenue. "Any other construction will be unreasonable and unfair and will lead to a state of affairs enabling the sick industrial unit to collect amounts due to the Revenue and withhold it indefinitely and unreasonably. Such a construction which is unfair, unreasonable and against the spirit of the statute in a business sense, should be avoided." (emphasis supplied)39. Justice Jeevan Reddy was much more emphatic. In a concurrent judgment, His Lordship stated;Looking at the provisions of the Sick Industrial Companies (Special Provisions) Act, 1985 [the Act], I was wondering how out of tune the Act has become with the economic policies being pursued now in this country. Since 1991-92, we are launched upon, what is being called, liberalisation of our economy. We have given up the policy of protecting our industries against foreign competition on the ground that it has given rise to an inefficient and outdated industrial system in our country. Our industries are suddenly being asked to compete with foreign companies, many of whom being giant multi-nationals have vast resources at their disposal. [They are merrily gobbling up our poor native companies. Many local industries, unable to stand the said competition are joining the foreign giants in one form of venture or other. Several hundreds of small-scale and medium scale units in telecom sector, for example have suffered enormously because of our love for foreign companies and their capital. The state of several public sector companies is no better. I am not saying that we have totally embraced, what may be called "Reaganism" or "Thatcherism". The fact, however, remains that it is no longer thought advisable to keep alive inefficient and uneconomic industries by injecting public funds or in the name of safeguarding the employment of the workers. And here is this Act, a product of the era of protectionism, seeking to keep alive "sick" companies by pumping in funds - mostly public funds - and by providing various concessions. In the process, nobody inquires why a particular industrial company has become sick, viz., whether it is an induced one or whether it is on account of factors beyond their control. The object of the Act is undoubtedly laudatory but it must also provide for appropriate measures against persons responsible where it is found that sickness is caused by factors other than circumstances beyond the control of the management. It is also a well-known fact that the proceedings before the Board of Industrial and Financial Reconstruction take a long time to conclude and all the while the protective umbrella of Section 22 is held over the company which has reported sick. We have come across cases where unfair advantage is sought to be taken of the provisions of Section 22 by certain industrial companies - and the wide language employed in the section is providing them a cover. We are sure Section 22 was not meant to breed dishonesty nor can it be so operated as to encourage unfair practices. The ultimate prejudice to public monies should not be overlooked in the process of promoting industrial progress. We are quite sure that the Government is fully alive to the situation and are equally certain that they must be thinking of necessary modifications in the Act. These few observations are meant merely to record the need for changes in the Act. (emphasis supplied)40. In Real Value Appliances Ltd. v. Canara Bank & Ors., (1998) 5 SCC 554 , a contention was advanced on behalf of the creditors that the conduct of the Company was far from satisfactory and highly objectionable. It suppressed several facts from the Court. Contradictory and inconsistent pleas were taken and fraud was practised on the Court.41. This Court agreed with what was submitted and observed;This conduct of the appellant, in our view, was certainly very unfair to the High Court and, therefore, the High Court had rightly depreciated the same. In our view, there was a clear attempt to keep the Court in the dark".42. The Court, however, proceeded to state that on that count reference-application to the BIFR would not become bad and if the Company was entitled to the benefit of SICA, it could not be denied the said benefit.43. In Rishabh Agro Industries Ltd. v. P.N.B. Capital Services Ltd., (2000) 5 SCC 515 , this Court held that where conditions precedent for applicability of SICA were satisfied, then notwithstanding that the order for winding up of the Company had been passed, the bar would get attracted.44. In Patheja Bros. Forgings & Stamping & Anr. v. ICICI Ltd. & Ors., (2000) 6 SCC 545 , this Court held that without requisite sanction under Section 22 of SICA, no suit can be proceeded with.45. In Jai Engineering Works Ltd. v. Industry Facilitation Council & Anr., (2006) 8 SCC 677 , after referring to all leading decisions on the point and describing 1985 Act as a ‘complete Code, this Court stated;The 1985 Act was enacted in public interest. It contains special provisions. The said special provisions had been made with a view to secure the timely detection of sick and potentially sick companies owning industrial undertakings, the speedy determination by a Board of experts for preventive, ameliorative, remedial and other measures which need to be taken with respect to such companies and the expeditious enforcement of the measures so determined and for matters connected therewith or incidental thereto.46. In my view, however, the learned counsel for the appellant is right in submitting that RDDB Act is a ‘special law and also a subsequent legislation, i.e. later law. It is well-settled that when any law has been enacted, the Legislature must be presumed to be aware of all existing laws. When RDDB Act was enacted in 1993, SICA was very much in force since it was enacted in 1985. In spite of that, Parliament was pleased to give ‘overriding effect to RDDB Act by using non-obstante clause in Section 34. Sub-section (1) expressly stated that the provisions of the Act "shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force".47. I am thus at a point where two statutes employ non-obstante clause having ‘overriding effect. Such a conflict, as laid down in several cases, may be resolved by judiciary on various considerations; such as the policy underlying the enactments, the language used, the object intended to be achieved; or mischief sought to be remedied, etc. One of the tests applied by Courts is that normally a later enactment should prevail over the former. The Courts would also try to reconcile both Acts by adopting harmonious interpretation and applying them in their respective fields so that both may operate without coming into conflict with each-other. In resolving the clash, the Court may further examine whether one of the two enactments is ‘special and the other one is ‘general. There can also be a situation in law where one and the same statute may be held to be a ‘special statute vis-à-vis one legislation and ‘general statute vis-à-vis another legislation. On the basis of one or more tests, the Court will try to salvage the situation by giving effect to non obstante clause in both the legislations.48. Let me consider some of the decisions of this Court on this vexed issue.49. In Shri Ram Narain v. Simla Banking & Industrial Co. Ltd., 1956 SCR 603 , two competing statutes came up for consideration before this Court being the Banking Companies Act, 1949 (as amended by Act 52 of 1953) and the Displaced Persons (Debt Adjustment) Act, 1951. Section 45-A of the Banking Companies Act (introduced by the amending Act of 1953) and Section 13 of the Displaced Persons Act, 1951 both contained a non-obstante clause stating that certain provisions of the Act shall have effect "notwithstanding anything inconsistent therewith in any other law for the time being in force". This Court resolved the conflict by considering the object and purpose of the two laws and giving primacy to the Banking Companies Act. The Court indicated that when two Acts contain provisions giving overriding effect, it would be a difficult question as to which Act should prevail. | 1 | 12,880 | 3,369 | ### 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:
that the provisions of the said Act were to prevail even over the provisions of the Sick Companies Act...... .... ...... .....It is a settled rule of interpretation that if one constructions leads to a conflict, whereas on another construction, two Acts can be harmoniously constructed then the latter must be adopted. If an interpretation is given that the Sick Industrial Companies (Special Provisions) Act, 1985, is to prevail then there would be a clear conflict. However, there would be no conflict if it is held that the 1992 Act is to prevail. On such an interpretation the objects of both would be fulfilled and there would be no conflict. It is clear that the Legislature intended that public monies should be recovered first even from sick companies. Provided the sick company was in a position to first pay back the public money, there would be no difficulty in reconstruction. The Board for Industrial and Financial Reconstruction considering a scheme for reconstruction has to keep in mind the fact that it is to be paid off or directed by the Special Court. The Special Court can, if it is convinced, grant time or instalments." 65. Approving the above observations, this Court stated: "We are in agreement with the aforesaid decision of the case, more so when we find that whenever the legislature wishes to do so it makes appropriate provisions in the Act in that behalf. Mr. Shiraz Rustomjee has drawn our attention to Section 34 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 wherein after giving an overriding effect to the 1993 Act it is specifically provided that the said Act will be in addition to and not in derogation of a number of other Acts including the 1985 Act. Similarly under Section 32 of the 1985 Act the applicability of the Foreign Exchange Regulation Act and the Urban Land Ceiling Act is not excluded." Legal position 66. From the above discussion, in my judgment, the law is fairly well settled. A provision beginning with non-obstante clause ("notwithstanding anything inconsistent contained therein in any other law for the time being in force") must be enforced and implemented by giving effect to the provisions of the Act and by limiting the provisions of other laws. But, it cannot be gainsaid that sometimes one may come across two or more enactments containing similar non-obstante clause operating in the same or similar direction. Obviously, in such cases, the Court must attempt to find out the intention of the Legislature by examining the nature of controversy, object of the Act, proceedings initiated, relief sought and several other relevant considerations. From the case-law referred to above, it is clear that Courts have applied several workable tests. They, inter alia, include to keep in view whether the Act is ‘general or ‘special, whether the Act is a subsequent legislation, whether there is reference to the former law and the non-obstante clause therein. The above tests are merely illustrative and by no means they should be considered as exhaustive. It is for the Court when it is called upon to resolve such conflict by harmoniously interpreting the provision of both the competing statutes and by giving effect to one over the other. Primacy of RDDB Act 67. Applying the above tests in the instance case, to me, it is crystal clear that the provisions of RDDB Act should be given priority and primacy over SICA. I may concede that both the Acts are ‘special Acts in the sense that they have been enacted for a specific purpose and object in view. Whereas SICA has been enacted in the public interest with a view to securing the timely detection of sick or potentially sick companies owning industrial undertakings, the speedy determination by a Board of Experts of the preventive, ameliorative, remedial and other measures which need to be taken with respect to such companies and the expeditious enforcement of the measures so determined and for matters connected therewith or incidental thereto, RDDB Act has been enacted to secure and protect public revenue and for expeditious adjudication and recovery of debts due to banks and financial institutions. RDDB Act is subsequent Act in the point of time being 1993 Act. It must, therefore, be presumed even in absence of any specific provision in the 1993 Act that Parliament was aware of all statutes which had been enacted prior to 1993 including SICA of 1985. In spite of that, in sub-section (1) of Section 34 of RDDB Act, non-obstante clause has been inserted so as to ensure expeditious adjudication and recovery of debts due to banks and financial institutions. 68. But it is not only on the ground that the RDDB Act is a later Act and SICA is a former Act that I am holding that the RDDB Act will prevail over SICA. There is an additional factor also which is of extreme importance and supports the view which I am inclined to take. It is sub-section (2) of Section 34. To recall, sub-section (2) of Section 34 of RDDB Act declares that the provisions of this Act (RDDB Act of 1993) are "in addition to and not in derogation of", certain enactments referred to in the said sub-section. SICA has been expressly mentioned in the said sub-section. As already adverted to earlier, RDDB Act, 1993 has been enacted with a view "to provide for the establishment of the Tribunals for expeditious adjudication and recovery of debts due to banks and financial institutions" (Preamble of the Act). All other laws, therefore, whether general or special, prior or subsequent, must, in my considered view, be interpreted and applied keeping in view the above object of enacting 1993 Act. I have, therefore, no hesitation in holding that even though both the conflicting statutes, (SICA of 1985 and RDDB Act of 1993) contain non-obstante clause, in case of conflict, RDDB Act, 1993 will prevail over SICA, 1985 so far as recovery of public revenue is concerned.
### Response:
1
### Explanation:
the Act is undoubtedly laudatory but it must also provide for appropriate measures against persons responsible where it is found that sickness is caused by factors other than circumstances beyond the control of the management. It is also a well-known fact that the proceedings before the Board of Industrial and Financial Reconstruction take a long time to conclude and all the while the protective umbrella of Section 22 is held over the company which has reported sick. We have come across cases where unfair advantage is sought to be taken of the provisions of Section 22 by certain industrial companies - and the wide language employed in the section is providing them a cover. We are sure Section 22 was not meant to breed dishonesty nor can it be so operated as to encourage unfair practices. The ultimate prejudice to public monies should not be overlooked in the process of promoting industrial progress. We are quite sure that the Government is fully alive to the situation and are equally certain that they must be thinking of necessary modifications in the Act. These few observations are meant merely to record the need for changes in the Act. (emphasis supplied)40. In Real Value Appliances Ltd. v. Canara Bank & Ors., (1998) 5 SCC 554 , a contention was advanced on behalf of the creditors that the conduct of the Company was far from satisfactory and highly objectionable. It suppressed several facts from the Court. Contradictory and inconsistent pleas were taken and fraud was practised on the Court.41. This Court agreed with what was submitted and observed;This conduct of the appellant, in our view, was certainly very unfair to the High Court and, therefore, the High Court had rightly depreciated the same. In our view, there was a clear attempt to keep the Court in the dark".42. The Court, however, proceeded to state that on that count reference-application to the BIFR would not become bad and if the Company was entitled to the benefit of SICA, it could not be denied the said benefit.43. In Rishabh Agro Industries Ltd. v. P.N.B. Capital Services Ltd., (2000) 5 SCC 515 , this Court held that where conditions precedent for applicability of SICA were satisfied, then notwithstanding that the order for winding up of the Company had been passed, the bar would get attracted.44. In Patheja Bros. Forgings & Stamping & Anr. v. ICICI Ltd. & Ors., (2000) 6 SCC 545 , this Court held that without requisite sanction under Section 22 of SICA, no suit can be proceeded with.45. In Jai Engineering Works Ltd. v. Industry Facilitation Council & Anr., (2006) 8 SCC 677 , after referring to all leading decisions on the point and describing 1985 Act as a ‘complete Code, this Court stated;The 1985 Act was enacted in public interest. It contains special provisions. The said special provisions had been made with a view to secure the timely detection of sick and potentially sick companies owning industrial undertakings, the speedy determination by a Board of experts for preventive, ameliorative, remedial and other measures which need to be taken with respect to such companies and the expeditious enforcement of the measures so determined and for matters connected therewith or incidental thereto.46. In my view, however, the learned counsel for the appellant is right in submitting that RDDB Act is a ‘special law and also a subsequent legislation, i.e. later law. It is well-settled that when any law has been enacted, the Legislature must be presumed to be aware of all existing laws. When RDDB Act was enacted in 1993, SICA was very much in force since it was enacted in 1985. In spite of that, Parliament was pleased to give ‘overriding effect to RDDB Act by using non-obstante clause in Section 34. Sub-section (1) expressly stated that the provisions of the Act "shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force".47. I am thus at a point where two statutes employ non-obstante clause having ‘overriding effect. Such a conflict, as laid down in several cases, may be resolved by judiciary on various considerations; such as the policy underlying the enactments, the language used, the object intended to be achieved; or mischief sought to be remedied, etc. One of the tests applied by Courts is that normally a later enactment should prevail over the former. The Courts would also try to reconcile both Acts by adopting harmonious interpretation and applying them in their respective fields so that both may operate without coming into conflict with each-other. In resolving the clash, the Court may further examine whether one of the two enactments is ‘special and the other one is ‘general. There can also be a situation in law where one and the same statute may be held to be a ‘special statute vis-à-vis one legislation and ‘general statute vis-à-vis another legislation. On the basis of one or more tests, the Court will try to salvage the situation by giving effect to non obstante clause in both the legislations.48. Let me consider some of the decisions of this Court on this vexed issue.49. In Shri Ram Narain v. Simla Banking & Industrial Co. Ltd., 1956 SCR 603 , two competing statutes came up for consideration before this Court being the Banking Companies Act, 1949 (as amended by Act 52 of 1953) and the Displaced Persons (Debt Adjustment) Act, 1951. Section 45-A of the Banking Companies Act (introduced by the amending Act of 1953) and Section 13 of the Displaced Persons Act, 1951 both contained a non-obstante clause stating that certain provisions of the Act shall have effect "notwithstanding anything inconsistent therewith in any other law for the time being in force". This Court resolved the conflict by considering the object and purpose of the two laws and giving primacy to the Banking Companies Act. The Court indicated that when two Acts contain provisions giving overriding effect, it would be a difficult question as to which Act should prevail.
|
VIJAY KUMAR & ORS Vs. OM PARKASH | R Banumathi, J. - Leave granted. 2. This appeal arises out of judgment and order dated 19th December, 2015 passed by the High Court of Punjab and Haryana at Chandigarh in R.S.A. NO.6184 of 2015 in and by which the High Court has affirmed the judgment of the First Appellate Court thereby granting decree for specific performance in favour of the respondent-plaintiff. 3. The facts of the case in a nutshell are as follows. The appellants-defendant and the respondent-plaintiff had entered into an agreement for sale on 9th November, 2007 in respect of a shop for a total sale consideration of Rs. 26,00,000 (Rupees twenty six lakhs). Rs. 4,00,000/- (Rupees four lakhs) was paid by the respondent-plaintiff to the appellants-defendant as earnest money and the remaining amount of Rs. 22,00,000/- (Rupees Twenty Two Lakhs) was to be paid on 31st March, 2008 that is the date fixed for executing the registration of the sale deed. Admittedly, both the parties went to the concerned Sub-Registrars Office on 31st March, 2008; but the sale deed was not executed. The respondent-plaintiff filed a suit on 29th April, 2008 for specific performance. The appellants-defendant contested the suit contending that the respondent-plaintiff was not ready and willing to perform his part of the contract. Upon consideration of oral and documentary evidence, the Trial Court dismissed the suit for specific performance filed by the respondent-plaintiff holding that the respondent has failed to prove his readiness and willingness to perform the contract. 4. In appeal, preferred by the respondent-plaintiff, the First Appellate Court set aside the judgment of the Trial Court and allowed the first appeal thereby granting specific performance in favour of the respondent-plaintiff. The judgment of the First Appellate Court was affirmed by the High Court, as aforesaid in para (1). 5. We have heard Mr. Kaushal Yadav, learned counsel appearing for the appellants-defendant and Mr. Sumit Bansal, learned counsel appearing for the respondent-plaintiff and also perused the impugned judgment and the evidence/materials on record. 6. Learned counsel for the respondent-plaintiff has submitted that the respondents readiness and willingness has been accepted by the two courts below and the respondent has actually deposited the balance amount of Rs. 22,00,000/- (Rupees Twenty Two Lakhs) in 2015 after the judgment of the First Appellate Court. 7. In order to obtain a decree for specific performance, the plaintiff has to prove his readiness and willingness to perform his part of the contract and the readiness and willingness has to be shown through out and has to be established by the plaintiff. In the case in hand, though the respondentplaintiff has filed the suit for specific performance on 29th April, 2008, the respondent-plaintiff has not shown his capacity to pay the balance sale consideration of Rs. 22,00,000 (Rupees Twenty Two Lakhs). In his evidence, the respondentplaintiff has stated that he has borrowed the amount from his friends and kept the money to pay the balance sale consideration. As rightly pointed out by the Trial Court, the respondent-plaintiff could not produce any document to show that he had the amount of Rs. 22,00,000 (Rupees Twenty Two Lakhs) with him on the relevant date; nor was he able to name the friends from whom he raised money or was able to raise the money. Further more, as rightly pointed out by the Trial Court, the respondent-plaintiff could have placed on record his Accounts Book, Pass Book or the Statement of Accounts or any other negotiable instrument to establish that he had the money with him at the relevant point of time to perform his part of the contract. We are, therefore, in agreement with the view taken by the Trial Court that the respondent-plaintiff has not been able to prove his readiness and willingness on his part. 8. The relief for specific performance is purely discretionary. Though the respondent-plaintiff has alleged that he was ready and willing to perform his part of the contract, the First Appellate Court ought to have examined first whether the respondent-plaintiff was able to show his capacity to pay the balance money. In our considered view, the First Appellate Court as well as the High Court has not properly appreciated the evidence and the conduct of the parties. The First Appellate Court as well as the High Court, in our view, was not right in reversing the judgment of the Trial Court and the impugned order cannot be sustained and liable to be set aside. | 1[ds]7. In order to obtain a decree for specific performance, the plaintiff has to prove his readiness and willingness to perform his part of the contract and the readiness and willingness has to be shown through out and has to be established by the plaintiff. In the case in hand, though the respondentplaintiff has filed the suit for specific performance on 29th April, 2008, the respondent-plaintiff has not shown his capacity to pay the balance sale consideration of Rs. 22,00,000 (Rupees Twenty Two Lakhs). In his evidence, the respondentplaintiff has stated that he has borrowed the amount from his friends and kept the money to pay the balance sale consideration. As rightly pointed out by the Trial Court, the respondent-plaintiff could not produce any document to show that he had the amount of Rs. 22,00,000 (Rupees Twenty Two Lakhs) with him on the relevant date; nor was he able to name the friends from whom he raised money or was able to raise the money. Further more, as rightly pointed out by the Trial Court, the respondent-plaintiff could have placed on record his Accounts Book, Pass Book or the Statement of Accounts or any other negotiable instrument to establish that he had the money with him at the relevant point of time to perform his part of the contract. We are, therefore, in agreement with the view taken by the Trial Court that the respondent-plaintiff has not been able to prove his readiness and willingness on his part.8. The relief for specific performance is purely discretionary. Though the respondent-plaintiff has alleged that he was ready and willing to perform his part of the contract, the First Appellate Court ought to have examined first whether the respondent-plaintiff was able to show his capacity to pay the balance money. In our considered view, the First Appellate Court as well as the High Court has not properly appreciated the evidence and the conduct of the parties. The First Appellate Court as well as the High Court, in our view, was not right in reversing the judgment of the Trial Court and the impugned order cannot be sustained and liable to be set aside. | 1 | 822 | 398 | ### 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:
R Banumathi, J. - Leave granted. 2. This appeal arises out of judgment and order dated 19th December, 2015 passed by the High Court of Punjab and Haryana at Chandigarh in R.S.A. NO.6184 of 2015 in and by which the High Court has affirmed the judgment of the First Appellate Court thereby granting decree for specific performance in favour of the respondent-plaintiff. 3. The facts of the case in a nutshell are as follows. The appellants-defendant and the respondent-plaintiff had entered into an agreement for sale on 9th November, 2007 in respect of a shop for a total sale consideration of Rs. 26,00,000 (Rupees twenty six lakhs). Rs. 4,00,000/- (Rupees four lakhs) was paid by the respondent-plaintiff to the appellants-defendant as earnest money and the remaining amount of Rs. 22,00,000/- (Rupees Twenty Two Lakhs) was to be paid on 31st March, 2008 that is the date fixed for executing the registration of the sale deed. Admittedly, both the parties went to the concerned Sub-Registrars Office on 31st March, 2008; but the sale deed was not executed. The respondent-plaintiff filed a suit on 29th April, 2008 for specific performance. The appellants-defendant contested the suit contending that the respondent-plaintiff was not ready and willing to perform his part of the contract. Upon consideration of oral and documentary evidence, the Trial Court dismissed the suit for specific performance filed by the respondent-plaintiff holding that the respondent has failed to prove his readiness and willingness to perform the contract. 4. In appeal, preferred by the respondent-plaintiff, the First Appellate Court set aside the judgment of the Trial Court and allowed the first appeal thereby granting specific performance in favour of the respondent-plaintiff. The judgment of the First Appellate Court was affirmed by the High Court, as aforesaid in para (1). 5. We have heard Mr. Kaushal Yadav, learned counsel appearing for the appellants-defendant and Mr. Sumit Bansal, learned counsel appearing for the respondent-plaintiff and also perused the impugned judgment and the evidence/materials on record. 6. Learned counsel for the respondent-plaintiff has submitted that the respondents readiness and willingness has been accepted by the two courts below and the respondent has actually deposited the balance amount of Rs. 22,00,000/- (Rupees Twenty Two Lakhs) in 2015 after the judgment of the First Appellate Court. 7. In order to obtain a decree for specific performance, the plaintiff has to prove his readiness and willingness to perform his part of the contract and the readiness and willingness has to be shown through out and has to be established by the plaintiff. In the case in hand, though the respondentplaintiff has filed the suit for specific performance on 29th April, 2008, the respondent-plaintiff has not shown his capacity to pay the balance sale consideration of Rs. 22,00,000 (Rupees Twenty Two Lakhs). In his evidence, the respondentplaintiff has stated that he has borrowed the amount from his friends and kept the money to pay the balance sale consideration. As rightly pointed out by the Trial Court, the respondent-plaintiff could not produce any document to show that he had the amount of Rs. 22,00,000 (Rupees Twenty Two Lakhs) with him on the relevant date; nor was he able to name the friends from whom he raised money or was able to raise the money. Further more, as rightly pointed out by the Trial Court, the respondent-plaintiff could have placed on record his Accounts Book, Pass Book or the Statement of Accounts or any other negotiable instrument to establish that he had the money with him at the relevant point of time to perform his part of the contract. We are, therefore, in agreement with the view taken by the Trial Court that the respondent-plaintiff has not been able to prove his readiness and willingness on his part. 8. The relief for specific performance is purely discretionary. Though the respondent-plaintiff has alleged that he was ready and willing to perform his part of the contract, the First Appellate Court ought to have examined first whether the respondent-plaintiff was able to show his capacity to pay the balance money. In our considered view, the First Appellate Court as well as the High Court has not properly appreciated the evidence and the conduct of the parties. The First Appellate Court as well as the High Court, in our view, was not right in reversing the judgment of the Trial Court and the impugned order cannot be sustained and liable to be set aside.
### Response:
1
### Explanation:
7. In order to obtain a decree for specific performance, the plaintiff has to prove his readiness and willingness to perform his part of the contract and the readiness and willingness has to be shown through out and has to be established by the plaintiff. In the case in hand, though the respondentplaintiff has filed the suit for specific performance on 29th April, 2008, the respondent-plaintiff has not shown his capacity to pay the balance sale consideration of Rs. 22,00,000 (Rupees Twenty Two Lakhs). In his evidence, the respondentplaintiff has stated that he has borrowed the amount from his friends and kept the money to pay the balance sale consideration. As rightly pointed out by the Trial Court, the respondent-plaintiff could not produce any document to show that he had the amount of Rs. 22,00,000 (Rupees Twenty Two Lakhs) with him on the relevant date; nor was he able to name the friends from whom he raised money or was able to raise the money. Further more, as rightly pointed out by the Trial Court, the respondent-plaintiff could have placed on record his Accounts Book, Pass Book or the Statement of Accounts or any other negotiable instrument to establish that he had the money with him at the relevant point of time to perform his part of the contract. We are, therefore, in agreement with the view taken by the Trial Court that the respondent-plaintiff has not been able to prove his readiness and willingness on his part.8. The relief for specific performance is purely discretionary. Though the respondent-plaintiff has alleged that he was ready and willing to perform his part of the contract, the First Appellate Court ought to have examined first whether the respondent-plaintiff was able to show his capacity to pay the balance money. In our considered view, the First Appellate Court as well as the High Court has not properly appreciated the evidence and the conduct of the parties. The First Appellate Court as well as the High Court, in our view, was not right in reversing the judgment of the Trial Court and the impugned order cannot be sustained and liable to be set aside.
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V.G. George Vs. Indian Rare Earths Ltd. | settle all problems and objections which arose in the course of mining work ?17 - Whether claimant suffered loss as mentioned in paragraph 14 of the State of Claim ?18 - Whether respondent is liable to make good the loss mentioned in issue No. 17 and if so, to what extent ?" 14. In respect of the above issues the arbitrator has given his findings which are as follows :- "15 - The allegation that six acres of land alone out of the mining area covered by the tender form was available for mining is not correct. In 243 acres of land covered by the tender form out of which 92 acres belonged to respondent, more than necessary area sufficient to mine and supply the contract quantity of 2,00,000 to 2,20,000 MT of raw sand was actually available for mining, but, on some days in April and except on one day, during the whole month of May 1980, mining of raw sand even in the available area and supply of raw sand from there were not possible, on some days partially and on other days wholly, on account of obstruction by kudikidappukars and local public.16 - Claimants right under the contract was purely personal, it did not amount to an interest in the 243 acres of land covered by the contract and he could not sue trangers in his own name in respect of that land, it was his responsibility to settle all problems and objections which arose in the course of the mining work between him and his mining workers, but not with strangers like kudikidappukars and local public who claimed either rights in the land or rights and privileges against the respondent, and it was respondents duty to see that the entire extent of mining area detailed in the tender form was available for mining and mining operations could be carried on there quety and without hindrance, and whenever complaint regarding obstruction was received respondent obstruction was received respondent tried to discharge that duty by appealing to public authorities for help, but without success.17-18 - Claimant suffered loss to the extent of Rs. 2,81,461.26 and respondent is liable to make good that loss." 15. The learned counsel for the respondent has brought to our notice Clause (c) of the tender notice which forms part of the contract between the parties. Clause (c) of the tender notice is stated as follows :- "(c) - The beach and inland deposits mentioned in Block Nos. 2, 4 and 6 may or may not be situated in Companys lands and hence it shall be the responsibility of the Contractor to obtain the consent of the owners in whose registered holdings the beach or inland deposits appear, before the Contractor begins to collect the sea washings or inland deposits as the case may be. An Indian Rate Earths Limited will not be responsible for the payment of any compensation to any individual on account of any claims resulting from such scrapping of sea washings or removal of inland deposits, it shall again be the responsibility of the Contractor to enter into agreements with the owners of registered holdings whose lands the Contractor may be required to utilise for the purpose of his successful execution of this contract, and the Company will not in any manner be responsible or liable for all or any of the claims for compensation by the said land owners." 16. It has been urged on behalf of the appellant that as the award is non-speaking one the High Court erred in law in going into the facts of the case. On the other hand it has been urged on behalf of the respondents that the present award cannot be said to be a non-speaking one as the findings of the arbitrator on each issue form part of the award. ï7�3 Š17. As stated above the award contains not only the sum awarded but also the case of the parties, issues framed, findings on each issue, therefore, we hold that the findings of the arbitrator on the issues are the part of the award and the court can look into the findings. 18. The petitioner has come to the findings that the entire mining area covered with tender was made available to the appellant but according to the arbitrator mining was not possible in some days in the month of April, 1980 and whole month of May, 1980 on account of obstructions by kudikidappukars and local public. The above finding of the arbitrator is in respect of the issue No. 15 which forms part of the award. While awarding the amount the arbitrator did not take note of the above Clause (c) of the tender notice which is a part of the agreement and under which the respondent would not be liable for such obstruction. Therefore, we hold that the amount awarded under Claim No. 3 is beyond the scope of the agreement entered into between the parties and, therefore, the awarded amount in respect of Claim No. 3 cannot be sustained.19. Claim No. 9 is in respect of escalation. It is not disputed at bar that in the agreement entered into between the parties there was no escalation clause. The arbitrator has come to the clear finding that the present appellant was not pressurised by respondent No. 1 to agree 10% hike in the wages of the mining workers as recorded in the findings in respect of issue No. 34. In issue No. 35 the arbitrator has recorded that the present appellant acceded to for raise in the wages of mining workers.20. The amount awarded under Claim No. 9 is not only beyond the scope of the agreement but also contract to the findings recorded by the arbitrator.21. Therefore, we hold that the arbitrator has misconducted himself in the proceedings and, therefore, the award is liable to be set aside on the ground of legal misconduct on the part of the arbitrator under Section 30 of the Act. | 0[ds]16. It has been urged on behalf of the appellant that as the award is non-speaking one the High Court erred in law in going into the facts of the case. On the other hand it has been urged on behalf of the respondents that the present award cannot be said to be a non-speaking one as the findings of the arbitrator on each issue form part of the award. ï7�3 s stated above the award contains not only the sum awarded but also the case of the parties, issues framed, findings on each issue, therefore, we hold that the findings of the arbitrator on the issues are the part of the award and the court can look into the findings.The petitioner has come to the findings that the entire mining area covered with tender was made available to the appellant but according to the arbitrator mining was not possible in some days in the month of April, 1980 and whole month of May, 1980 on account of obstructions by kudikidappukars and local public. The above finding of the arbitrator is in respect of the issue No. 15 which forms part of the award. While awarding the amount the arbitrator did not take note of the above Clause (c) of the tender notice which is a part of the agreement and under which the respondent would not be liable for such obstruction. Therefore, we hold that the amount awarded under Claim No. 3 is beyond the scope of the agreement entered into between the parties and, therefore, the awarded amount in respect of Claim No. 3 cannot be sustained.19. Claim No. 9 is in respect of escalation. It is not disputed at bar that in the agreement entered into between the parties there was no escalation clause. The arbitrator has come to the clear finding that the present appellant was not pressurised by respondent No. 1 to agree 10% hike in the wages of the mining workers as recorded in the findings in respect of issue No. 34. In issue No. 35 the arbitrator has recorded that the present appellant acceded to for raise in the wages of mining workers.20. The amount awarded under Claim No. 9 is not only beyond the scope of the agreement but also contract to the findings recorded by the arbitrator.21. Therefore, we hold that the arbitrator has misconducted himself in the proceedings and, therefore, the award is liable to be set aside on the ground of legal misconduct on the part of the arbitrator under Section 30 of the Act. | 0 | 2,205 | 470 | ### 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:
settle all problems and objections which arose in the course of mining work ?17 - Whether claimant suffered loss as mentioned in paragraph 14 of the State of Claim ?18 - Whether respondent is liable to make good the loss mentioned in issue No. 17 and if so, to what extent ?" 14. In respect of the above issues the arbitrator has given his findings which are as follows :- "15 - The allegation that six acres of land alone out of the mining area covered by the tender form was available for mining is not correct. In 243 acres of land covered by the tender form out of which 92 acres belonged to respondent, more than necessary area sufficient to mine and supply the contract quantity of 2,00,000 to 2,20,000 MT of raw sand was actually available for mining, but, on some days in April and except on one day, during the whole month of May 1980, mining of raw sand even in the available area and supply of raw sand from there were not possible, on some days partially and on other days wholly, on account of obstruction by kudikidappukars and local public.16 - Claimants right under the contract was purely personal, it did not amount to an interest in the 243 acres of land covered by the contract and he could not sue trangers in his own name in respect of that land, it was his responsibility to settle all problems and objections which arose in the course of the mining work between him and his mining workers, but not with strangers like kudikidappukars and local public who claimed either rights in the land or rights and privileges against the respondent, and it was respondents duty to see that the entire extent of mining area detailed in the tender form was available for mining and mining operations could be carried on there quety and without hindrance, and whenever complaint regarding obstruction was received respondent obstruction was received respondent tried to discharge that duty by appealing to public authorities for help, but without success.17-18 - Claimant suffered loss to the extent of Rs. 2,81,461.26 and respondent is liable to make good that loss." 15. The learned counsel for the respondent has brought to our notice Clause (c) of the tender notice which forms part of the contract between the parties. Clause (c) of the tender notice is stated as follows :- "(c) - The beach and inland deposits mentioned in Block Nos. 2, 4 and 6 may or may not be situated in Companys lands and hence it shall be the responsibility of the Contractor to obtain the consent of the owners in whose registered holdings the beach or inland deposits appear, before the Contractor begins to collect the sea washings or inland deposits as the case may be. An Indian Rate Earths Limited will not be responsible for the payment of any compensation to any individual on account of any claims resulting from such scrapping of sea washings or removal of inland deposits, it shall again be the responsibility of the Contractor to enter into agreements with the owners of registered holdings whose lands the Contractor may be required to utilise for the purpose of his successful execution of this contract, and the Company will not in any manner be responsible or liable for all or any of the claims for compensation by the said land owners." 16. It has been urged on behalf of the appellant that as the award is non-speaking one the High Court erred in law in going into the facts of the case. On the other hand it has been urged on behalf of the respondents that the present award cannot be said to be a non-speaking one as the findings of the arbitrator on each issue form part of the award. ï7�3 Š17. As stated above the award contains not only the sum awarded but also the case of the parties, issues framed, findings on each issue, therefore, we hold that the findings of the arbitrator on the issues are the part of the award and the court can look into the findings. 18. The petitioner has come to the findings that the entire mining area covered with tender was made available to the appellant but according to the arbitrator mining was not possible in some days in the month of April, 1980 and whole month of May, 1980 on account of obstructions by kudikidappukars and local public. The above finding of the arbitrator is in respect of the issue No. 15 which forms part of the award. While awarding the amount the arbitrator did not take note of the above Clause (c) of the tender notice which is a part of the agreement and under which the respondent would not be liable for such obstruction. Therefore, we hold that the amount awarded under Claim No. 3 is beyond the scope of the agreement entered into between the parties and, therefore, the awarded amount in respect of Claim No. 3 cannot be sustained.19. Claim No. 9 is in respect of escalation. It is not disputed at bar that in the agreement entered into between the parties there was no escalation clause. The arbitrator has come to the clear finding that the present appellant was not pressurised by respondent No. 1 to agree 10% hike in the wages of the mining workers as recorded in the findings in respect of issue No. 34. In issue No. 35 the arbitrator has recorded that the present appellant acceded to for raise in the wages of mining workers.20. The amount awarded under Claim No. 9 is not only beyond the scope of the agreement but also contract to the findings recorded by the arbitrator.21. Therefore, we hold that the arbitrator has misconducted himself in the proceedings and, therefore, the award is liable to be set aside on the ground of legal misconduct on the part of the arbitrator under Section 30 of the Act.
### Response:
0
### Explanation:
16. It has been urged on behalf of the appellant that as the award is non-speaking one the High Court erred in law in going into the facts of the case. On the other hand it has been urged on behalf of the respondents that the present award cannot be said to be a non-speaking one as the findings of the arbitrator on each issue form part of the award. ï7�3 s stated above the award contains not only the sum awarded but also the case of the parties, issues framed, findings on each issue, therefore, we hold that the findings of the arbitrator on the issues are the part of the award and the court can look into the findings.The petitioner has come to the findings that the entire mining area covered with tender was made available to the appellant but according to the arbitrator mining was not possible in some days in the month of April, 1980 and whole month of May, 1980 on account of obstructions by kudikidappukars and local public. The above finding of the arbitrator is in respect of the issue No. 15 which forms part of the award. While awarding the amount the arbitrator did not take note of the above Clause (c) of the tender notice which is a part of the agreement and under which the respondent would not be liable for such obstruction. Therefore, we hold that the amount awarded under Claim No. 3 is beyond the scope of the agreement entered into between the parties and, therefore, the awarded amount in respect of Claim No. 3 cannot be sustained.19. Claim No. 9 is in respect of escalation. It is not disputed at bar that in the agreement entered into between the parties there was no escalation clause. The arbitrator has come to the clear finding that the present appellant was not pressurised by respondent No. 1 to agree 10% hike in the wages of the mining workers as recorded in the findings in respect of issue No. 34. In issue No. 35 the arbitrator has recorded that the present appellant acceded to for raise in the wages of mining workers.20. The amount awarded under Claim No. 9 is not only beyond the scope of the agreement but also contract to the findings recorded by the arbitrator.21. Therefore, we hold that the arbitrator has misconducted himself in the proceedings and, therefore, the award is liable to be set aside on the ground of legal misconduct on the part of the arbitrator under Section 30 of the Act.
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Commnr. Of Customs, New Delhi Vs. M/S. Sony India Ltd | HSN Explanatory Notes to Rule 2 (a) had to be applied while considering the relevant Tariff Entry. It has also correctly held after considering the whole process that the process involved in the user of the components is the complex manufacturing process during which many components are subjected to working operation requiring sophisticated machinery and skilled operators. Further it has correctly assessed the effect of the amendment of HSN Explanatory Notes which came on 14.3.1997. We approve of the finding given by the Tribunal in para 25 of its order which takes into account the fact that there was no amendment to Clause (v) while this is amended to the effect that complexity of the assembly method was made irrelevant. However, it was made clear that the components would not be subjected to any further working operation for completion in the finished state. The Tribunal has referred in details to the manufacturing process to show that some of the components require further working operation for completing the manufacturing process and further that CTV is not a machine which is presented in assembly for the sake of convenience of packing, handling or transport. We are, therefore, in agreement with the finding that even applying the amended HSN Explanatory Notes the position would be no different. 16. Our attention was invited to a very interesting decision reported in Modi Xerox Ltd. v. CCE, New Delhi (1998 (103) ELT 109] which was confirmed by this Court in 2001 (ELT) A 91 (it must be noted that the decisions in Woodcraft Products is specifically confirmed in this decision). In this case, the Tribunal had relied on Tara Chands case as also the CC v. Mitsuny Electronics Works [1987 (13) ELT 345 (Cal. HC)] which we have made reference in the earlier part of this judgment. The Tribunal had held that the fax machine in completely knocked down condition imported by the appellant being not a fax machine but part thereof, the benefit of exemption under notification No.59/88/Cus. Dated 1.3.1988 would not be available. Very interestingly, it was claimed by the importer that it had imported the fax machine and not the components obviously because the duty payable on the components was more. The Tribunal came to the conclusion that in view of Section Note 2 to Section XVI Rule 2(a) would not apply and confirmed the import of goods as components. While interpreting Explanatory Note to Rule 2(a), the Tribunal had held that this Rule would apply only when the imported articles presented in unassembled or disassembled can be put together by means of simple fixing device or riveting or welding. It came to the conclusion that fax machines were not the type of goods which were normally traded or transported in knocked down condition and therefore, the imports were that of the components and not of fax machines. Shri Lakshmikumaran also invites our attention to the fact that Chapter 64 dealing with footwear does not have a note similar to Note 2 in Section XVI. Thus this position would render support to the proposition that Rule 2(a) would apply only when the imported articles presented unassembled or disassembled can be put together by means of simple fixing device or by riveting or welding. We have already pointed out in the earlier part of our judgment that the complicated process would be required for the user of those parts. 17. Lastly, we must take stock of the argument of Shri Lakshmikumaran that Section Interpretative Rule 2(a) would not be applicable at all in this case. For this he invited our attention to Rule 1 of Interpretative Rules as also to the decision in Simplex Mills v. Union of India [2005 (181) ELT 345 (SC)] wherein this Court had held in para 11 as under: "11. The rules for the interpretation of the Schedule to the Central Excise Tariff Act, 1985 have been framed pursuant to the powers under Section 2 of that Act. According to Rule 1 titles of sections and chapters in the Schedule are provided for ease of reference only. But for legal purposes, classification "shall be determined according to the terms of the headings and any relevant sector or chapter Notes". If neither the heading nor the notes suffice to clarify the scope of a heading, then it must be construed according to the other following provisions contained in the Rules. Rule-I gives primacy to the Section and Chapter Notes along with terms of the headings. They should be first applied. If no clear picture emerges then only can one resort to the subsequent rules." Relying on this the further contention of the counsel is that Section Note 2 of Section XVI provides mandate for classification of the parts of machines falling under Section XVI. In terms of Rule 1 of Interpretative Rules, invocation of Rule 2(a) for certain categories of goods covered in Section XVI like the goods of CTVs are prohibited. For this the learned counsel relied on the decision in Modi Xerox (supra). In that view the learned counsel says that Rule 2(a) would not be applicable at all. This question needs no consideration here particularly in view of the interpretation that we have given to Rule 2 (a). On facts, we have already found that Rule 2(a) would not be applicable to the present case since there is no question of the goods having the essential character of CTVs. In that view, the question of applicability of Section 2(a) on this account need not be gone into in this judgment. 18. We also approve of the reliance by the Tribunal on the reported decision in Susha Electronics Industries v. CC [1989 (39) ELT 585], Trident Television Pvt. Ltd. v. CC [(1990) 45 ELT 24] , Vishal Electronics Pvt. Ltd. v. CC, Bombay [1998 (102 ELT 188], Sharp Business Machines (supra) and the judgment of the Calcutta High Court in HCL Ltd. (supra). 19. Accordingly, we are of the clear opinion that the Tribunals judgment needs no interference. | 0[ds]We also approve of the reliance by the Tribunal on the reported decision in Susha Electronics Industries v. CC [1989 (39) ELT 585], Trident Television Pvt. Ltd. v. CC [(1990) 45 ELT 24] , Vishal Electronics Pvt. Ltd. v. CC, Bombay [1998 (102 ELT 188], Sharp Business Machines (supra) and the judgment of the Calcutta High Court in HCL Ltd. (supra).Accordingly, we are of the clear opinion that the Tribunals judgment needs no interference. | 0 | 7,770 | 101 | ### Instruction:
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HSN Explanatory Notes to Rule 2 (a) had to be applied while considering the relevant Tariff Entry. It has also correctly held after considering the whole process that the process involved in the user of the components is the complex manufacturing process during which many components are subjected to working operation requiring sophisticated machinery and skilled operators. Further it has correctly assessed the effect of the amendment of HSN Explanatory Notes which came on 14.3.1997. We approve of the finding given by the Tribunal in para 25 of its order which takes into account the fact that there was no amendment to Clause (v) while this is amended to the effect that complexity of the assembly method was made irrelevant. However, it was made clear that the components would not be subjected to any further working operation for completion in the finished state. The Tribunal has referred in details to the manufacturing process to show that some of the components require further working operation for completing the manufacturing process and further that CTV is not a machine which is presented in assembly for the sake of convenience of packing, handling or transport. We are, therefore, in agreement with the finding that even applying the amended HSN Explanatory Notes the position would be no different. 16. Our attention was invited to a very interesting decision reported in Modi Xerox Ltd. v. CCE, New Delhi (1998 (103) ELT 109] which was confirmed by this Court in 2001 (ELT) A 91 (it must be noted that the decisions in Woodcraft Products is specifically confirmed in this decision). In this case, the Tribunal had relied on Tara Chands case as also the CC v. Mitsuny Electronics Works [1987 (13) ELT 345 (Cal. HC)] which we have made reference in the earlier part of this judgment. The Tribunal had held that the fax machine in completely knocked down condition imported by the appellant being not a fax machine but part thereof, the benefit of exemption under notification No.59/88/Cus. Dated 1.3.1988 would not be available. Very interestingly, it was claimed by the importer that it had imported the fax machine and not the components obviously because the duty payable on the components was more. The Tribunal came to the conclusion that in view of Section Note 2 to Section XVI Rule 2(a) would not apply and confirmed the import of goods as components. While interpreting Explanatory Note to Rule 2(a), the Tribunal had held that this Rule would apply only when the imported articles presented in unassembled or disassembled can be put together by means of simple fixing device or riveting or welding. It came to the conclusion that fax machines were not the type of goods which were normally traded or transported in knocked down condition and therefore, the imports were that of the components and not of fax machines. Shri Lakshmikumaran also invites our attention to the fact that Chapter 64 dealing with footwear does not have a note similar to Note 2 in Section XVI. Thus this position would render support to the proposition that Rule 2(a) would apply only when the imported articles presented unassembled or disassembled can be put together by means of simple fixing device or by riveting or welding. We have already pointed out in the earlier part of our judgment that the complicated process would be required for the user of those parts. 17. Lastly, we must take stock of the argument of Shri Lakshmikumaran that Section Interpretative Rule 2(a) would not be applicable at all in this case. For this he invited our attention to Rule 1 of Interpretative Rules as also to the decision in Simplex Mills v. Union of India [2005 (181) ELT 345 (SC)] wherein this Court had held in para 11 as under: "11. The rules for the interpretation of the Schedule to the Central Excise Tariff Act, 1985 have been framed pursuant to the powers under Section 2 of that Act. According to Rule 1 titles of sections and chapters in the Schedule are provided for ease of reference only. But for legal purposes, classification "shall be determined according to the terms of the headings and any relevant sector or chapter Notes". If neither the heading nor the notes suffice to clarify the scope of a heading, then it must be construed according to the other following provisions contained in the Rules. Rule-I gives primacy to the Section and Chapter Notes along with terms of the headings. They should be first applied. If no clear picture emerges then only can one resort to the subsequent rules." Relying on this the further contention of the counsel is that Section Note 2 of Section XVI provides mandate for classification of the parts of machines falling under Section XVI. In terms of Rule 1 of Interpretative Rules, invocation of Rule 2(a) for certain categories of goods covered in Section XVI like the goods of CTVs are prohibited. For this the learned counsel relied on the decision in Modi Xerox (supra). In that view the learned counsel says that Rule 2(a) would not be applicable at all. This question needs no consideration here particularly in view of the interpretation that we have given to Rule 2 (a). On facts, we have already found that Rule 2(a) would not be applicable to the present case since there is no question of the goods having the essential character of CTVs. In that view, the question of applicability of Section 2(a) on this account need not be gone into in this judgment. 18. We also approve of the reliance by the Tribunal on the reported decision in Susha Electronics Industries v. CC [1989 (39) ELT 585], Trident Television Pvt. Ltd. v. CC [(1990) 45 ELT 24] , Vishal Electronics Pvt. Ltd. v. CC, Bombay [1998 (102 ELT 188], Sharp Business Machines (supra) and the judgment of the Calcutta High Court in HCL Ltd. (supra). 19. Accordingly, we are of the clear opinion that the Tribunals judgment needs no interference.
### Response:
0
### Explanation:
We also approve of the reliance by the Tribunal on the reported decision in Susha Electronics Industries v. CC [1989 (39) ELT 585], Trident Television Pvt. Ltd. v. CC [(1990) 45 ELT 24] , Vishal Electronics Pvt. Ltd. v. CC, Bombay [1998 (102 ELT 188], Sharp Business Machines (supra) and the judgment of the Calcutta High Court in HCL Ltd. (supra).Accordingly, we are of the clear opinion that the Tribunals judgment needs no interference.
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Managing Committee, Khalsa Middle School & Another Vs. Mohinder Kaur & Another | dated July 1,1979 ?9. Sec. 2 of the Societies Registration Act prescribed that a society will have a memorandum of association which will contain the name of the society, the objects of the society and the names and addresses and occupation of the governors, their council, directors, committee or the governing body to whom by the rules of the society, the management of its affairs is entrusted. The said section also provides that in addition to memorandum of association, there would be rules and regulations of society which are also required to be filed with the memorandum of association for the purpose of registration of the society under Section of the said Act. As regards alteration of the memorandum of association provision is made in Section 12 which prescribes the procedure for altering, extending or abridging the purpose or purposes for which the society has been established. By Delhi Act 9 of 1954, certain amendments have been made in the Societies Registration Act as applicable in the Union Territory of Delhi and as a result Section 12-A has been inserted to make provision for registration of change of name etc. It reads as under: “12-A, Registration of change of name—(1) Where a proposition for change of name has been agreed to and confirmed in the manner prescribed by Section 12, a copy of the proposition so agreed to and confirmed shall be forwarded to the Registrar for registering the change of name. If the proposed name is identical with that by which any other existing society has been registered, or in the opinion of the Registrar so nearly resembles such name as to be likely to deceive the public or the members of either society, the Registrar shall refuse to register the change of name.(2) Save as provided in Sub-section (1), the Registrar shall, if he is satisfied that the provisions of this Act in respect of change of name have been complied with, register the change of name and issue a certificate of registration altered to meet the circumstances of the case. On the issue of such a certificate the change of name shall be complete.(3) The Registrar shall charge for any copy of a certificate issued under Sub-section (2) a fee of rupee one or such larger fee not exceeding rupees five as the State Government may, from time-to-time, direct; and all fees so paid shall form part of the Consolidated Fund of India.” 10. Apart from the requirement contained in Section 12A for registration of the change of name of a Society with the Registrar, there is no requirement in the Societies Registration Act which requires registration of any amendment in the memorandum of association or the rules and regulations of a society to be registered with the Registrar. Even in the Companies Act, 1956 a distinction is made in the matter of alteration of the memorandum of association and alteration of the articles of association. Under Section 18 of the Companies Act, it is necessary that the alteration of memorandum of association be registered with the Registrar of Companies within the prescribed period and the alteration takes effect from the date of its registration and under Section 19(1), it is provided that the alteration shall have effect only it has been duly registered in accordance with the provisions of Section 18. There is no such requirement with regard to registration of the alteration in the articles of association of the company. Here we are concerned with the amendment in the rules and regulations of the Society. In the absence of any requirement in the Societies Registration Act that the alteration in the rules and regulations must be registered with the Registrar, it cannot be held that registration of the amendment is a condition precedent for such an alteration to come into effect. It is, therefore, not possible to accept the contention of Mr. Mehta that the amendment which was made in the rules and regulations by resolution dated July 1, 1979 did not come into effect till March 13, 1980 when the amended rules and regulations were registered with the Registrar, Firms and Societies. The said amendment should be treated to have come into effect from the date on which the resolution making the said amendment was passed,i.e., July 1, 1979. As a result of the said amendment in the rules and regulations of the Society, the alterations made in the Rules and Regulations in 1963 were reversed and the position as it stood prior to the amendment of 1963 was restored. Consequently, the School which was a minority institution till the amendment of the Rules and Regulations in 1963 and had ceased to be a minority institution as a result of the amendment in 1963 regained its status as a minority institution after July 1, 1979, when the rules and regulations were amended and the original position was restored. In view of the restoration of the minority character of the institution the provisions of the Education Act and the Education Rules ceased to be applicable to the institution after July 1, 1979. The impugned order for termination of the services of the respondent was passed on December 31, 1979, i.e., after the School had become a minority institution. The said order cannot, therefore, be held to be invalid on the ground that it was passed in contravention of Section 8 of the Education Act. The order passed by the Delhi High Court quashing the said order as well as the Disciplinary proceedings cannot, therefore, be upheld. The respondent was placed under suspension on August 11, 1972 and continued under suspension till April 9, 1973 on which date Education Act came into force. In other words she was under suspension at a time when the Education Act was not in force. The order of suspension cannot be judged on the basis of the Education Act and the Education Rules. We are, therefore, unable to uphold the direction of the High Court quashing her order of suspension. | 1[ds]7. We do not find merit in the first contention urged by Mr. Tarkunde. The object of the amendments that were introduced in the rules and regulations of the Society in 1963 was to change the minority status of the institution so that it could be allotted land by the Delhi Development Authority. The Society also proceeded on the basis that it had ceased to be a minority institution after 1963 because after the enactment of the Education Act in 1973 the Society functioned as ainstitution and was complying with the provisions of the Education Act and the Education Rules. It is the case of the appellants that the disciplinary proceedings that were continued against the respondent were conducted in accordance with the provisions of the Education Act and the Education Rules and the Disciplinary Committee was constituted fromin accordance with the said provisions as per the directions of the Education Department of the Delhi Administration. We are, therefore, unable to hold that the school had not ceased to be a minority institution as a result of the amendment of the rules and regulations of the Society in 1963.8. As regards the second submission of Mr. Tarkunde with regard to restoration of the minority status of the institution after the amendment of the rules and regulations of the Society by resolution dated July 1, 1979, the submission of Mr. Mehta, the learned Counsel appearing for theis that the rules and regulations as amended by the resolution dated July 1, 1979 were registered with the Registrar, Firms and Societies, Delhi on March 13. 1980 and, therefore, the amended rules and regulations came into effect only on the date of such registration and the said amended rules were not in force on December 31, 1979, the date of passing of the impugned order of removal of the respondent and on December 31, 1979, the school was ainstitution governed by the provisions of the Education Act and the Education Rules. In view of the said submission, the question which needs to be considered is, what is the date of the coming into force of the rules and regulations, which were amended by resolution dated July 1,1979 ?9. Sec. 2 of the Societies Registration Act prescribed that a society will have a memorandum of association which will contain the name of the society, the objects of the society and the names and addresses andof the governors, their council, directors, committee or the governing body to whom by the rules of the society, the management of its affairs is entrusted. The said section also provides that in addition to memorandum of association, there would be rules and regulations of society which are also required to be filed with the memorandum of association for the purpose of registration of the society under Section of the said Act. As regards alteration of the memorandum of association provision is made in Section 12 which prescribes the procedure for altering, extending or abridging the purpose or purposes for which the society has been established. By Delhi Act 9 of 1954, certain amendments have been made in the Societies Registration Act as applicable in the Union Territory of Delhi and as a result Sectionhas been inserted to make provision for registration of change of nameApart from the requirement contained in Section 12A for registration of the change of name of a Society with the Registrar, there is no requirement in the Societies Registration Act which requires registration of any amendment in the memorandum of association or the rules and regulations of a society to be registered with the Registrar. Even in the Companies Act, 1956 a distinction is made in the matter of alteration of the memorandum of association and alteration of the articles of association. Under Section 18 of the Companies Act, it is necessary that the alteration of memorandum of association be registered with the Registrar of Companies within the prescribed period and the alteration takes effect from the date of its registration and under Section 19(1), it is provided that the alteration shall have effect only it has been duly registered in accordance with the provisions of Section 18. There is no such requirement with regard to registration of the alteration in the articles of association of the company. Here we are concerned with the amendment in the rules and regulations of the Society. In the absence of any requirement in the Societies Registration Act that the alteration in the rules and regulations must be registered with the Registrar, it cannot be held that registration of the amendment is a condition precedent for such an alteration to come into effect. It is, therefore, not possible to accept the contention of Mr. Mehta that the amendment which was made in the rules and regulations by resolution dated July 1, 1979 did not come into effect till March 13, 1980 when the amended rules and regulations were registered with the Registrar, Firms and Societies. The said amendment should be treated to have come into effect from the date on which the resolution making the saidwas passed,i.e., July 1, 1979. As a result of the said amendment in the rules and regulations of the Society, the alterations made in the Rules and Regulations in 1963 were reversed and the position as it stood prior to the amendment of 1963 was restored. Consequently, the School which was a minority institution till the amendment of the Rules and Regulations in 1963 and had ceased to be a minority institution as a result of the amendment in 1963 regained its status as a minority institution after July 1, 1979, when the rules and regulations were amended and the original position was restored. In view of the restoration of the minority character of the institution the provisions of the Education Act and the Education Rules ceased to be applicable to the institution after July 1, 1979. The impugned order for termination of the services of the respondent was passed on December 31, 1979, i.e., after the School had become a minorityThe said order cannot, therefore, be held to be invalid on the ground that it was passed in contravention of Section 8 of the Education Act. The order passed by the Delhi High Court quashing the said order as well as the Disciplinary proceedings cannot, therefore, be upheld. The respondent was placed under suspension on August 11, 1972 and continued under suspension till April 9, 1973 on which date Education Act came into force. In other words she was under suspension at a time when the Education Act was not in force. The order of suspension cannot be judged on the basis of the Education Act and the Education Rules. We are, therefore, unable to uphold the direction of the High Court quashing her order of suspension. | 1 | 3,243 | 1,230 | ### Instruction:
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dated July 1,1979 ?9. Sec. 2 of the Societies Registration Act prescribed that a society will have a memorandum of association which will contain the name of the society, the objects of the society and the names and addresses and occupation of the governors, their council, directors, committee or the governing body to whom by the rules of the society, the management of its affairs is entrusted. The said section also provides that in addition to memorandum of association, there would be rules and regulations of society which are also required to be filed with the memorandum of association for the purpose of registration of the society under Section of the said Act. As regards alteration of the memorandum of association provision is made in Section 12 which prescribes the procedure for altering, extending or abridging the purpose or purposes for which the society has been established. By Delhi Act 9 of 1954, certain amendments have been made in the Societies Registration Act as applicable in the Union Territory of Delhi and as a result Section 12-A has been inserted to make provision for registration of change of name etc. It reads as under: “12-A, Registration of change of name—(1) Where a proposition for change of name has been agreed to and confirmed in the manner prescribed by Section 12, a copy of the proposition so agreed to and confirmed shall be forwarded to the Registrar for registering the change of name. If the proposed name is identical with that by which any other existing society has been registered, or in the opinion of the Registrar so nearly resembles such name as to be likely to deceive the public or the members of either society, the Registrar shall refuse to register the change of name.(2) Save as provided in Sub-section (1), the Registrar shall, if he is satisfied that the provisions of this Act in respect of change of name have been complied with, register the change of name and issue a certificate of registration altered to meet the circumstances of the case. On the issue of such a certificate the change of name shall be complete.(3) The Registrar shall charge for any copy of a certificate issued under Sub-section (2) a fee of rupee one or such larger fee not exceeding rupees five as the State Government may, from time-to-time, direct; and all fees so paid shall form part of the Consolidated Fund of India.” 10. Apart from the requirement contained in Section 12A for registration of the change of name of a Society with the Registrar, there is no requirement in the Societies Registration Act which requires registration of any amendment in the memorandum of association or the rules and regulations of a society to be registered with the Registrar. Even in the Companies Act, 1956 a distinction is made in the matter of alteration of the memorandum of association and alteration of the articles of association. Under Section 18 of the Companies Act, it is necessary that the alteration of memorandum of association be registered with the Registrar of Companies within the prescribed period and the alteration takes effect from the date of its registration and under Section 19(1), it is provided that the alteration shall have effect only it has been duly registered in accordance with the provisions of Section 18. There is no such requirement with regard to registration of the alteration in the articles of association of the company. Here we are concerned with the amendment in the rules and regulations of the Society. In the absence of any requirement in the Societies Registration Act that the alteration in the rules and regulations must be registered with the Registrar, it cannot be held that registration of the amendment is a condition precedent for such an alteration to come into effect. It is, therefore, not possible to accept the contention of Mr. Mehta that the amendment which was made in the rules and regulations by resolution dated July 1, 1979 did not come into effect till March 13, 1980 when the amended rules and regulations were registered with the Registrar, Firms and Societies. The said amendment should be treated to have come into effect from the date on which the resolution making the said amendment was passed,i.e., July 1, 1979. As a result of the said amendment in the rules and regulations of the Society, the alterations made in the Rules and Regulations in 1963 were reversed and the position as it stood prior to the amendment of 1963 was restored. Consequently, the School which was a minority institution till the amendment of the Rules and Regulations in 1963 and had ceased to be a minority institution as a result of the amendment in 1963 regained its status as a minority institution after July 1, 1979, when the rules and regulations were amended and the original position was restored. In view of the restoration of the minority character of the institution the provisions of the Education Act and the Education Rules ceased to be applicable to the institution after July 1, 1979. The impugned order for termination of the services of the respondent was passed on December 31, 1979, i.e., after the School had become a minority institution. The said order cannot, therefore, be held to be invalid on the ground that it was passed in contravention of Section 8 of the Education Act. The order passed by the Delhi High Court quashing the said order as well as the Disciplinary proceedings cannot, therefore, be upheld. The respondent was placed under suspension on August 11, 1972 and continued under suspension till April 9, 1973 on which date Education Act came into force. In other words she was under suspension at a time when the Education Act was not in force. The order of suspension cannot be judged on the basis of the Education Act and the Education Rules. We are, therefore, unable to uphold the direction of the High Court quashing her order of suspension.
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### Explanation:
the Disciplinary Committee was constituted fromin accordance with the said provisions as per the directions of the Education Department of the Delhi Administration. We are, therefore, unable to hold that the school had not ceased to be a minority institution as a result of the amendment of the rules and regulations of the Society in 1963.8. As regards the second submission of Mr. Tarkunde with regard to restoration of the minority status of the institution after the amendment of the rules and regulations of the Society by resolution dated July 1, 1979, the submission of Mr. Mehta, the learned Counsel appearing for theis that the rules and regulations as amended by the resolution dated July 1, 1979 were registered with the Registrar, Firms and Societies, Delhi on March 13. 1980 and, therefore, the amended rules and regulations came into effect only on the date of such registration and the said amended rules were not in force on December 31, 1979, the date of passing of the impugned order of removal of the respondent and on December 31, 1979, the school was ainstitution governed by the provisions of the Education Act and the Education Rules. In view of the said submission, the question which needs to be considered is, what is the date of the coming into force of the rules and regulations, which were amended by resolution dated July 1,1979 ?9. Sec. 2 of the Societies Registration Act prescribed that a society will have a memorandum of association which will contain the name of the society, the objects of the society and the names and addresses andof the governors, their council, directors, committee or the governing body to whom by the rules of the society, the management of its affairs is entrusted. The said section also provides that in addition to memorandum of association, there would be rules and regulations of society which are also required to be filed with the memorandum of association for the purpose of registration of the society under Section of the said Act. As regards alteration of the memorandum of association provision is made in Section 12 which prescribes the procedure for altering, extending or abridging the purpose or purposes for which the society has been established. By Delhi Act 9 of 1954, certain amendments have been made in the Societies Registration Act as applicable in the Union Territory of Delhi and as a result Sectionhas been inserted to make provision for registration of change of nameApart from the requirement contained in Section 12A for registration of the change of name of a Society with the Registrar, there is no requirement in the Societies Registration Act which requires registration of any amendment in the memorandum of association or the rules and regulations of a society to be registered with the Registrar. Even in the Companies Act, 1956 a distinction is made in the matter of alteration of the memorandum of association and alteration of the articles of association. Under Section 18 of the Companies Act, it is necessary that the alteration of memorandum of association be registered with the Registrar of Companies within the prescribed period and the alteration takes effect from the date of its registration and under Section 19(1), it is provided that the alteration shall have effect only it has been duly registered in accordance with the provisions of Section 18. There is no such requirement with regard to registration of the alteration in the articles of association of the company. Here we are concerned with the amendment in the rules and regulations of the Society. In the absence of any requirement in the Societies Registration Act that the alteration in the rules and regulations must be registered with the Registrar, it cannot be held that registration of the amendment is a condition precedent for such an alteration to come into effect. It is, therefore, not possible to accept the contention of Mr. Mehta that the amendment which was made in the rules and regulations by resolution dated July 1, 1979 did not come into effect till March 13, 1980 when the amended rules and regulations were registered with the Registrar, Firms and Societies. The said amendment should be treated to have come into effect from the date on which the resolution making the saidwas passed,i.e., July 1, 1979. As a result of the said amendment in the rules and regulations of the Society, the alterations made in the Rules and Regulations in 1963 were reversed and the position as it stood prior to the amendment of 1963 was restored. Consequently, the School which was a minority institution till the amendment of the Rules and Regulations in 1963 and had ceased to be a minority institution as a result of the amendment in 1963 regained its status as a minority institution after July 1, 1979, when the rules and regulations were amended and the original position was restored. In view of the restoration of the minority character of the institution the provisions of the Education Act and the Education Rules ceased to be applicable to the institution after July 1, 1979. The impugned order for termination of the services of the respondent was passed on December 31, 1979, i.e., after the School had become a minorityThe said order cannot, therefore, be held to be invalid on the ground that it was passed in contravention of Section 8 of the Education Act. The order passed by the Delhi High Court quashing the said order as well as the Disciplinary proceedings cannot, therefore, be upheld. The respondent was placed under suspension on August 11, 1972 and continued under suspension till April 9, 1973 on which date Education Act came into force. In other words she was under suspension at a time when the Education Act was not in force. The order of suspension cannot be judged on the basis of the Education Act and the Education Rules. We are, therefore, unable to uphold the direction of the High Court quashing her order of suspension.
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Gajadhar Prasad & Ors Vs. Babu Bhakta Ratan & Ors | of one side. It is certainly not necessary for it to state its own estimate. If this were required, it may, to be fair, necessitate insertion of something like a summary of a judicially considered order, giving its grounds, in the sale proclamation which may confuse bidders. It may also be quite misleading if the Courts estimate is erroneous. Moreover, Rule 66 (2) (e) requires the Court to state only the facts it considers material for a purchaser to judge the value and nature of the property himself. Hence, the purchaser should be left to judge the value for himself. But. essential facts which have a being on the very material question of value of the property and which would assist the purchaser in forming his own opinion must be stated. That is, after all, the whole object of Order 21, Rule 66 (2) (e), Civil Procedure Code. The Court has only to decide what all these material particulars are in each case. We think that this is an obligation imposed by Rule 66 (2) (e). In discharging it, the Court should normally state the valuation given by both the decree-holder as well as the judgment debtor where they have both valued the property; and these do not appear fantastic. It may usefully state other material facts, such as the area of land, nature of rights in it, municipal assessment, actual rents realised, which could reasonably be expected to effect valuation. What could be reasonably and usefully stated succinctly in a sale proclamation has to be determined on the facts of each particular case. Inflexible rules are not desirable on such a question.16. In the case before us, the execution Court had practically accepted, as its own valuation, without indicating reasonable grounds for this preference, whatever the decree holders had asserted about the value of the property. It did not bother to seriously even consider the objections of the judgment-debtors. We think that the duty to consider what particulars should be inserted in the sale proclamation and how the sale ought to be conducted should be performed judicially and reasonably. If the execution Court does not, as it did not in the case before us, apply its mind or give any consideration whatsoever to the objections of the .judgment-debtor we think a material irregularity would be committed by the execution Court. It is not necessary for the execution Court to order the insertion of a judicially passed order in the sale proclamation itself, but, it should pass an order showing that it applied its mind to the need for determining all the essential particulars, which would reasonably be looked for by a purchaser, and which should be inserted in the sale proclamation. The order should show that it considered the objections. if any, of the decree-holders or the judgment debtors as the case may be. It should not merely accept unhesitatingly the ipse dixit of one side. We think that the execution Court had not performed its duty fairly and reasonably in this case. After embarking on the difficult task of valuation, it rejected the judgment-debtors figures by merely observing that they are exaggerated and practically accepted without hesitation whatever the decree-holders submitted, but this valuation was proved to be incorrect judged by the results of auction sales taken as a whole.17. Mr. J. N. Chatterji relied upon the following passage in Marudanavagam Pillai v. Manickavasakam Chettiar, AIR 1945 PC 67 at p. 70:"If the respondent knew the true facts, if he purchased at what he knew was too low a figure based on an upset price accepted by the Court owing to his own initial misrepresentation and subsequent suppression of material facts, his conduct would amount to fraud on the Court as the learned subordinate judge points out."18. It is not necessary for us to decide whether the decree-holders conduct in the case before us would amount to actual fraud practiced on the Court with regard to the valuation. The judgment-debtors were there with their own valuation and had even applied for the appointment of a Commissioner at their expense to report about matters affecting the value of the property. They had asserted that the two bungalows at Tej Bahadur Sapru Road would fetch a much higher value if sold separately: The execution court should have at least performed the duty of considering whether these objections were well founded.19. We find from a perusal of the sale proclamation in this case that even the area of the compound in which the two bungalows were situated was not there. The land in the compound is evidently nazool lease hold land but the unexpired period of the lease or rent payable on it are not mentioned. It was not stated whether the bungalows, which were valued separately, would be sold as one or two items of property. Probably, it was left to the Amin to exercise his own discretion in this matter as he had exercised it in the case of Colonel-gunj property. The cumulative effect of all the features of the case mentioned above is that we think that there was material irregularity here in the conduct of the execution sale of the two.20. We now turn to the question of substantial injury. The result of the separate sales of the houses in Colonelgunj was that, when sale prices were added up, they fetched a considerably higher price than that put upon these properties, lumped together in one lot, by the decree-holders. The High Court had also found that sales of the two bungalows on the Tej Bahadur Sapru Road separately would probably similarly have fetched a higher price. The affidavit dated 19-7-1947 filed by the judgment-debtors, as stated above, had not been controverted by any material put forward by the decree-holders.21. We, therefore, think that there is enough evidence to indicate that the judgment-debtors had suffered substantial injury so far as the sale of the two bungalows numbers 8 and 10 on Tej Bahadur Sapru Road, Allahabad, are concerned. | 1[ds]15. A review of the authorities as well as the amendments to Rule 66 (2) (e) make it abundantly clear that the Court, when stating the estimated value of the property to be sold, must not accept merely the ipse dixit of one side. It is certainly not necessary for it to state its own estimate. If this were required, it may, to be fair, necessitate insertion of something like a summary of a judicially considered order, giving its grounds, in the sale proclamation which may confuse bidders. It may also be quite misleading if the Courts estimate is erroneous. Moreover, Rule 66 (2) (e) requires the Court to state only the facts it considers material for a purchaser to judge the value and nature of the property himself. Hence, the purchaser should be left to judge the value for himself. But. essential facts which have a being on the very material question of value of the property and which would assist the purchaser in forming his own opinion must be stated. That is, after all, the whole object of Order 21, Rule 66 (2) (e), Civil Procedure Code.In the case before us, the execution Court had practically accepted, as its own valuation, without indicating reasonable grounds for this preference, whatever the decree holders had asserted about the value of the property. It did not bother to seriously even consider the objections of the judgment-debtors. We think that the duty to consider what particulars should be inserted in the sale proclamation and how the sale ought to be conducted should be performed judicially and reasonably. If the execution Court does not, as it did not in the case before us, apply its mind or give any consideration whatsoever to the objections of the .judgment-debtor we think a material irregularity would be committed by the execution Court. It is not necessary for the execution Court to order the insertion of a judicially passed order in the sale proclamation itself, but, it should pass an order showing that it applied its mind to the need for determining all the essential particulars, which would reasonably be looked for by a purchaser, and which should be inserted in the sale proclamation. The order should show that it considered the objections. if any, of the decree-holders or the judgment debtors as the case may be. It should not merely accept unhesitatingly the ipse dixit of one side. We think that the execution Court had not performed its duty fairly and reasonably in this case. After embarking on the difficult task of valuation, it rejected the judgment-debtors figures by merely observing that they are exaggerated and practically accepted without hesitation whatever the decree-holders submitted, but this valuation was proved to be incorrect judged by the results of auction sales taken as a whole.We find from a perusal of the sale proclamation in this case that even the area of the compound in which the two bungalows were situated was not there. The land in the compound is evidently nazool lease hold land but the unexpired period of the lease or rent payable on it are not mentioned. It was not stated whether the bungalows, which were valued separately, would be sold as one or two items of property. Probably, it was left to the Amin to exercise his own discretion in this matter as he had exercised it in the case of Colonel-gunj property. The cumulative effect of all the features of the case mentioned above is that we think that there was material irregularity here in the conduct of the execution sale of the two.20. We now turn to the question of substantial injury. The result of the separate sales of the houses in Colonelgunj was that, when sale prices were added up, they fetched a considerably higher price than that put upon these properties, lumped together in one lot, by the decree-holders. The High Court had also found that sales of the two bungalows on the Tej Bahadur Sapru Road separately would probably similarly have fetched a higher price. The affidavit dated 19-7-1947 filed by the judgment-debtors, as stated above, had not been controverted by any material put forward by the decree-holders.21. We, therefore, think that there is enough evidence to indicate that the judgment-debtors had suffered substantial injury so far as the sale of the two bungalows numbers 8 and 10 on Tej Bahadur Sapru Road, Allahabad, are concerned. | 1 | 3,527 | 819 | ### Instruction:
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of one side. It is certainly not necessary for it to state its own estimate. If this were required, it may, to be fair, necessitate insertion of something like a summary of a judicially considered order, giving its grounds, in the sale proclamation which may confuse bidders. It may also be quite misleading if the Courts estimate is erroneous. Moreover, Rule 66 (2) (e) requires the Court to state only the facts it considers material for a purchaser to judge the value and nature of the property himself. Hence, the purchaser should be left to judge the value for himself. But. essential facts which have a being on the very material question of value of the property and which would assist the purchaser in forming his own opinion must be stated. That is, after all, the whole object of Order 21, Rule 66 (2) (e), Civil Procedure Code. The Court has only to decide what all these material particulars are in each case. We think that this is an obligation imposed by Rule 66 (2) (e). In discharging it, the Court should normally state the valuation given by both the decree-holder as well as the judgment debtor where they have both valued the property; and these do not appear fantastic. It may usefully state other material facts, such as the area of land, nature of rights in it, municipal assessment, actual rents realised, which could reasonably be expected to effect valuation. What could be reasonably and usefully stated succinctly in a sale proclamation has to be determined on the facts of each particular case. Inflexible rules are not desirable on such a question.16. In the case before us, the execution Court had practically accepted, as its own valuation, without indicating reasonable grounds for this preference, whatever the decree holders had asserted about the value of the property. It did not bother to seriously even consider the objections of the judgment-debtors. We think that the duty to consider what particulars should be inserted in the sale proclamation and how the sale ought to be conducted should be performed judicially and reasonably. If the execution Court does not, as it did not in the case before us, apply its mind or give any consideration whatsoever to the objections of the .judgment-debtor we think a material irregularity would be committed by the execution Court. It is not necessary for the execution Court to order the insertion of a judicially passed order in the sale proclamation itself, but, it should pass an order showing that it applied its mind to the need for determining all the essential particulars, which would reasonably be looked for by a purchaser, and which should be inserted in the sale proclamation. The order should show that it considered the objections. if any, of the decree-holders or the judgment debtors as the case may be. It should not merely accept unhesitatingly the ipse dixit of one side. We think that the execution Court had not performed its duty fairly and reasonably in this case. After embarking on the difficult task of valuation, it rejected the judgment-debtors figures by merely observing that they are exaggerated and practically accepted without hesitation whatever the decree-holders submitted, but this valuation was proved to be incorrect judged by the results of auction sales taken as a whole.17. Mr. J. N. Chatterji relied upon the following passage in Marudanavagam Pillai v. Manickavasakam Chettiar, AIR 1945 PC 67 at p. 70:"If the respondent knew the true facts, if he purchased at what he knew was too low a figure based on an upset price accepted by the Court owing to his own initial misrepresentation and subsequent suppression of material facts, his conduct would amount to fraud on the Court as the learned subordinate judge points out."18. It is not necessary for us to decide whether the decree-holders conduct in the case before us would amount to actual fraud practiced on the Court with regard to the valuation. The judgment-debtors were there with their own valuation and had even applied for the appointment of a Commissioner at their expense to report about matters affecting the value of the property. They had asserted that the two bungalows at Tej Bahadur Sapru Road would fetch a much higher value if sold separately: The execution court should have at least performed the duty of considering whether these objections were well founded.19. We find from a perusal of the sale proclamation in this case that even the area of the compound in which the two bungalows were situated was not there. The land in the compound is evidently nazool lease hold land but the unexpired period of the lease or rent payable on it are not mentioned. It was not stated whether the bungalows, which were valued separately, would be sold as one or two items of property. Probably, it was left to the Amin to exercise his own discretion in this matter as he had exercised it in the case of Colonel-gunj property. The cumulative effect of all the features of the case mentioned above is that we think that there was material irregularity here in the conduct of the execution sale of the two.20. We now turn to the question of substantial injury. The result of the separate sales of the houses in Colonelgunj was that, when sale prices were added up, they fetched a considerably higher price than that put upon these properties, lumped together in one lot, by the decree-holders. The High Court had also found that sales of the two bungalows on the Tej Bahadur Sapru Road separately would probably similarly have fetched a higher price. The affidavit dated 19-7-1947 filed by the judgment-debtors, as stated above, had not been controverted by any material put forward by the decree-holders.21. We, therefore, think that there is enough evidence to indicate that the judgment-debtors had suffered substantial injury so far as the sale of the two bungalows numbers 8 and 10 on Tej Bahadur Sapru Road, Allahabad, are concerned.
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1
### Explanation:
15. A review of the authorities as well as the amendments to Rule 66 (2) (e) make it abundantly clear that the Court, when stating the estimated value of the property to be sold, must not accept merely the ipse dixit of one side. It is certainly not necessary for it to state its own estimate. If this were required, it may, to be fair, necessitate insertion of something like a summary of a judicially considered order, giving its grounds, in the sale proclamation which may confuse bidders. It may also be quite misleading if the Courts estimate is erroneous. Moreover, Rule 66 (2) (e) requires the Court to state only the facts it considers material for a purchaser to judge the value and nature of the property himself. Hence, the purchaser should be left to judge the value for himself. But. essential facts which have a being on the very material question of value of the property and which would assist the purchaser in forming his own opinion must be stated. That is, after all, the whole object of Order 21, Rule 66 (2) (e), Civil Procedure Code.In the case before us, the execution Court had practically accepted, as its own valuation, without indicating reasonable grounds for this preference, whatever the decree holders had asserted about the value of the property. It did not bother to seriously even consider the objections of the judgment-debtors. We think that the duty to consider what particulars should be inserted in the sale proclamation and how the sale ought to be conducted should be performed judicially and reasonably. If the execution Court does not, as it did not in the case before us, apply its mind or give any consideration whatsoever to the objections of the .judgment-debtor we think a material irregularity would be committed by the execution Court. It is not necessary for the execution Court to order the insertion of a judicially passed order in the sale proclamation itself, but, it should pass an order showing that it applied its mind to the need for determining all the essential particulars, which would reasonably be looked for by a purchaser, and which should be inserted in the sale proclamation. The order should show that it considered the objections. if any, of the decree-holders or the judgment debtors as the case may be. It should not merely accept unhesitatingly the ipse dixit of one side. We think that the execution Court had not performed its duty fairly and reasonably in this case. After embarking on the difficult task of valuation, it rejected the judgment-debtors figures by merely observing that they are exaggerated and practically accepted without hesitation whatever the decree-holders submitted, but this valuation was proved to be incorrect judged by the results of auction sales taken as a whole.We find from a perusal of the sale proclamation in this case that even the area of the compound in which the two bungalows were situated was not there. The land in the compound is evidently nazool lease hold land but the unexpired period of the lease or rent payable on it are not mentioned. It was not stated whether the bungalows, which were valued separately, would be sold as one or two items of property. Probably, it was left to the Amin to exercise his own discretion in this matter as he had exercised it in the case of Colonel-gunj property. The cumulative effect of all the features of the case mentioned above is that we think that there was material irregularity here in the conduct of the execution sale of the two.20. We now turn to the question of substantial injury. The result of the separate sales of the houses in Colonelgunj was that, when sale prices were added up, they fetched a considerably higher price than that put upon these properties, lumped together in one lot, by the decree-holders. The High Court had also found that sales of the two bungalows on the Tej Bahadur Sapru Road separately would probably similarly have fetched a higher price. The affidavit dated 19-7-1947 filed by the judgment-debtors, as stated above, had not been controverted by any material put forward by the decree-holders.21. We, therefore, think that there is enough evidence to indicate that the judgment-debtors had suffered substantial injury so far as the sale of the two bungalows numbers 8 and 10 on Tej Bahadur Sapru Road, Allahabad, are concerned.
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Regional Director Employees State Insurance Corporation Vs. Ram Chander | for wages on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on with the aid of power or is ordinarily so carried on but excluding a mine subject to the operation of the Mines Act, 1952 (35 of 1952) or a railway running shed or an establishment which is exclusively engaged in any of the manufacturing processes specified in Clause (12) of Section 2 of the Employees State Insurance Act, 1948 (34 of 1948). 1. Alwar 2. Ajmer 3. Bikaner 4. Jaipur 5. Jodhpur 6. Kota 7. Udaipur (emphasis supplied) 4. In order to answer the question whether the establishment of the respondent comes within the mischief of the Act, it is necessary therefore, in view of the facts found as noted before to determine only whether manufacturing process was carried on with the aid of power. It is manifest that there is use of electric power in the process of stitching. This is a finding of fact that the establishment or the shop employed more than 10 but less than 20 persons. It cannot also be disputed that by stitching commercially different goods are brought into existence. These are known differently, stitched shirt is indubitably a different commodity then unstitched cloth. It is so commercially known and treated. If by a process a different entity comes into existence than it can be said that this was manufactured. See in this connection the observations of this Court in Empire Industries Limited and Others etc. v. Union of India and Others etc. - 1985 (20) E.L.T. 179 (S.C.) = 1985 Suppl. 1 S.C.R. 292. It was observed therein that manufacture is complete as soon as by the application of one or more process, the raw material undergoes some change. If a new substance is brought into existence or if a new or different article having a distinctive name, character or use result from particular processes, such process or processes would amount to manufacture. Whether in a particular case manufacture has resulted by a process or not would depend on the facts and circumstances of the particular case. There is no doubt that the process must bring into existence a new item or a new commodity known differently in the market as such by people who use or deal with that good. In that process the ironing of clothes as has been found to be an essential part and for that power is used. These are facts found and are not disputed. If that is the position, then in our opinion, it comes clearly within the purview of the Act in view of the other facts noted before and the employees are covered by the Act. 5. Our attention was drawn by learned counsel appearing on behalf of the respondent to the observations of this Court in Deputy Commissioner, Sales Tax (Law) Board of Revenue (Taxes), Ernakulam v. Pio Food Packers - 1980 E.L.T. 343 (S.C.) = 1980 3 S.C.R. 1271 and the decision of this Court in Chowgule and Co. Pvt. Ltd. and Another v. Union of India and Others - 1981 Tax L.R 2929 (S.C.) = 1981 2 S.C.R. 271. The effect of both these decisions have been considered in the aforesaid Empire Industries case (supra). Learned counsel drew. our attention to the decision of this Court in Ardeshir H. Bhiwandiwala v. The State of Bombay - 1961 3 S.C.R. 592, where the question arose under the Factory Act. It was held therein that the salt works was a factory within the definition given in the Act and the appellant therein was rightly convicted for working it without a licence. The decision is of no assistance to the respondent in resolving the contentions involved in this appeal. 6. Our attention was also drawn to the decision of this Court in M/s. Hindu Jea Band, Jaipur v. Regional Director, Employers State Insurance Corporation, Jaipur, (A.I.R. 1987 S.C. 1166), where it was held that it was not that a place where goods were sold was only a shop. A place where services were sold on retail basis was also a shop. The facts of that case were entirely different from these in this case. But the ratio of that decision is apposite to the issue in dispute here. There this Court reiterated that it was not that a place where goods were sold was only a shop. But a place where services were sold on retail basis was also a shop. The place of business of a firm carrying on the business of playing music on occasion, such as, marriage and other social functions which made available on payment of the stipulated price the services of the members of the group of musicians employed by it on wages was a shop to which the Act was applicable by virtue of the notification. The fact that the services were rendered by the employees engaged by the firm intermittently or during marriages did not entitle the firm to claim any exemption from the operation of the Act. In Metro Readywear Company v. Collector of Customs [1978 (2) E.L.T. 520] of the High Court of Kerala at Ernakulam it was held that the brassieres were undoubtedly undergarments falling within the description articles of ready-to-wear apparel (known commercially as readymade garments) and therefore was classified under Item 22D of Central Excise Tariff. Ironing with electric iron amounted to aprocess of manufacture with the aid of power. It was held that ironing of stitched brassieres is incidental or ancillary to their manufacture since the said process was intended to give a finishing touch in order to render them marketable. In our opinion the ratio or the reasoning of the said decision is applicable to the facts of this case. 7. Our attention was drawn to the unreported decision of the Andhra Pradesh High Court in Employees State Insurance Corporation v. M/s. New Empire Tailors and Others, where the aforesaid reasoning was accepted by the High Court. | 1[ds]The facts of that case were entirely different from these in this case. But the ratio of that decision is apposite to the issue in dispute here. There this Court reiterated that it was not that a place where goods were sold was only a shop. But a place where services were sold on retail basis was also a shop. The place of business of a firm carrying on the business of playing music on occasion, such as, marriage and other social functions which made available on payment of the stipulated price the services of the members of the group of musicians employed by it on wages was a shop to which the Act was applicable by virtue of the notification. The fact that the services were rendered by the employees engaged by the firm intermittently or during marriages did not entitle the firm to claim any exemption from the operation of the Act. In Metro Readywear Company v. Collector of Customs [1978 (2) E.L.T. 520] of the High Court of Kerala at Ernakulam it was held that the brassieres were undoubtedly undergarments falling within the description articles of ready-to-wear apparel (known commercially as readymade garments) and therefore was classified under Item 22D of Central Excise Tariff. Ironing with electric iron amounted to aprocess of manufacture with the aid of power. It was held that ironing of stitched brassieres is incidental or ancillary to their manufacture since the said process was intended to give a finishing touch in order to render them marketable. In our opinion the ratio or the reasoning of the said decision is applicable to the facts of this case7. Our attention was drawn to the unreported decision of the Andhra Pradesh High Court in Employees State Insurance Corporation v. M/s. New Empire Tailors and Others, where the aforesaid reasoning was accepted by the High Court8. In the light of the aforesaid, we are of the opinion that the High Court in the instant case was in error and the decision of the E.S.I. Court must be upheldThe decision is of no assistance to the respondent in resolving the contentions involved in this appeal. | 1 | 1,505 | 386 | ### 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:
for wages on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on with the aid of power or is ordinarily so carried on but excluding a mine subject to the operation of the Mines Act, 1952 (35 of 1952) or a railway running shed or an establishment which is exclusively engaged in any of the manufacturing processes specified in Clause (12) of Section 2 of the Employees State Insurance Act, 1948 (34 of 1948). 1. Alwar 2. Ajmer 3. Bikaner 4. Jaipur 5. Jodhpur 6. Kota 7. Udaipur (emphasis supplied) 4. In order to answer the question whether the establishment of the respondent comes within the mischief of the Act, it is necessary therefore, in view of the facts found as noted before to determine only whether manufacturing process was carried on with the aid of power. It is manifest that there is use of electric power in the process of stitching. This is a finding of fact that the establishment or the shop employed more than 10 but less than 20 persons. It cannot also be disputed that by stitching commercially different goods are brought into existence. These are known differently, stitched shirt is indubitably a different commodity then unstitched cloth. It is so commercially known and treated. If by a process a different entity comes into existence than it can be said that this was manufactured. See in this connection the observations of this Court in Empire Industries Limited and Others etc. v. Union of India and Others etc. - 1985 (20) E.L.T. 179 (S.C.) = 1985 Suppl. 1 S.C.R. 292. It was observed therein that manufacture is complete as soon as by the application of one or more process, the raw material undergoes some change. If a new substance is brought into existence or if a new or different article having a distinctive name, character or use result from particular processes, such process or processes would amount to manufacture. Whether in a particular case manufacture has resulted by a process or not would depend on the facts and circumstances of the particular case. There is no doubt that the process must bring into existence a new item or a new commodity known differently in the market as such by people who use or deal with that good. In that process the ironing of clothes as has been found to be an essential part and for that power is used. These are facts found and are not disputed. If that is the position, then in our opinion, it comes clearly within the purview of the Act in view of the other facts noted before and the employees are covered by the Act. 5. Our attention was drawn by learned counsel appearing on behalf of the respondent to the observations of this Court in Deputy Commissioner, Sales Tax (Law) Board of Revenue (Taxes), Ernakulam v. Pio Food Packers - 1980 E.L.T. 343 (S.C.) = 1980 3 S.C.R. 1271 and the decision of this Court in Chowgule and Co. Pvt. Ltd. and Another v. Union of India and Others - 1981 Tax L.R 2929 (S.C.) = 1981 2 S.C.R. 271. The effect of both these decisions have been considered in the aforesaid Empire Industries case (supra). Learned counsel drew. our attention to the decision of this Court in Ardeshir H. Bhiwandiwala v. The State of Bombay - 1961 3 S.C.R. 592, where the question arose under the Factory Act. It was held therein that the salt works was a factory within the definition given in the Act and the appellant therein was rightly convicted for working it without a licence. The decision is of no assistance to the respondent in resolving the contentions involved in this appeal. 6. Our attention was also drawn to the decision of this Court in M/s. Hindu Jea Band, Jaipur v. Regional Director, Employers State Insurance Corporation, Jaipur, (A.I.R. 1987 S.C. 1166), where it was held that it was not that a place where goods were sold was only a shop. A place where services were sold on retail basis was also a shop. The facts of that case were entirely different from these in this case. But the ratio of that decision is apposite to the issue in dispute here. There this Court reiterated that it was not that a place where goods were sold was only a shop. But a place where services were sold on retail basis was also a shop. The place of business of a firm carrying on the business of playing music on occasion, such as, marriage and other social functions which made available on payment of the stipulated price the services of the members of the group of musicians employed by it on wages was a shop to which the Act was applicable by virtue of the notification. The fact that the services were rendered by the employees engaged by the firm intermittently or during marriages did not entitle the firm to claim any exemption from the operation of the Act. In Metro Readywear Company v. Collector of Customs [1978 (2) E.L.T. 520] of the High Court of Kerala at Ernakulam it was held that the brassieres were undoubtedly undergarments falling within the description articles of ready-to-wear apparel (known commercially as readymade garments) and therefore was classified under Item 22D of Central Excise Tariff. Ironing with electric iron amounted to aprocess of manufacture with the aid of power. It was held that ironing of stitched brassieres is incidental or ancillary to their manufacture since the said process was intended to give a finishing touch in order to render them marketable. In our opinion the ratio or the reasoning of the said decision is applicable to the facts of this case. 7. Our attention was drawn to the unreported decision of the Andhra Pradesh High Court in Employees State Insurance Corporation v. M/s. New Empire Tailors and Others, where the aforesaid reasoning was accepted by the High Court.
### Response:
1
### Explanation:
The facts of that case were entirely different from these in this case. But the ratio of that decision is apposite to the issue in dispute here. There this Court reiterated that it was not that a place where goods were sold was only a shop. But a place where services were sold on retail basis was also a shop. The place of business of a firm carrying on the business of playing music on occasion, such as, marriage and other social functions which made available on payment of the stipulated price the services of the members of the group of musicians employed by it on wages was a shop to which the Act was applicable by virtue of the notification. The fact that the services were rendered by the employees engaged by the firm intermittently or during marriages did not entitle the firm to claim any exemption from the operation of the Act. In Metro Readywear Company v. Collector of Customs [1978 (2) E.L.T. 520] of the High Court of Kerala at Ernakulam it was held that the brassieres were undoubtedly undergarments falling within the description articles of ready-to-wear apparel (known commercially as readymade garments) and therefore was classified under Item 22D of Central Excise Tariff. Ironing with electric iron amounted to aprocess of manufacture with the aid of power. It was held that ironing of stitched brassieres is incidental or ancillary to their manufacture since the said process was intended to give a finishing touch in order to render them marketable. In our opinion the ratio or the reasoning of the said decision is applicable to the facts of this case7. Our attention was drawn to the unreported decision of the Andhra Pradesh High Court in Employees State Insurance Corporation v. M/s. New Empire Tailors and Others, where the aforesaid reasoning was accepted by the High Court8. In the light of the aforesaid, we are of the opinion that the High Court in the instant case was in error and the decision of the E.S.I. Court must be upheldThe decision is of no assistance to the respondent in resolving the contentions involved in this appeal.
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Sanjeev Kr. Samrat Vs. National Insurance Co. Ltd. | a claim under the Act as well as under the 1923 Act, the said person is entitled to compensation under either of the Acts, but not under both. 22. Coming to the scheme of the 1923 Act, it is worth noticing that under Section 3 of the said Act, the employer is liable to pay compensation to the workman in respect of personal injury or death caused by an accident arising out of or in the course of his employment. Section 4 provides the procedure how the amount of compensation is to be determined. In this context, we may usefully quote a passage from Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy and Others [(2003) 2 SCC 339] : - “....Section 147 of the Act mandates compulsory coverage against death of or bodily injury to any passenger of “public service vehicle”. The proviso makes it further clear that compulsory coverage in respect of drivers and conductors of public service vehicle and employees carried in goods vehicle would be limited to liability under the Workmen’s Compensation Act, 1923 (in short “the WC Act”). There is no reference to any passenger in “goods carriage.” [Underlining is ours] 23. In Ved Prakash Garg v. Premi Devi and Others [(1997) 8 SCC 1] , after referring to the scheme of the 1923 Act in the context of payment of penalty for default by the insurer under Section 4-A of the Act, this Court held thus: - “On a conjoint operation of the relevant schemes of the aforesaid twin Acts, in our view, there is no escape from the conclusion that the insurance companies will be liable to make good not only the principal amounts of compensation payable by insured employers but also interest thereon, if ordered by the Commissioner to be paid by the insured employers. Reason for this conclusion is obvious. As we have noted earlier the liability to pay compensation under the Workmens Compensation Act gets foisted on the employer provided it is shown that the workman concerned suffered from personal injury, fatal or otherwise, by any motor accident arising out of and in the course of his employment. Such an accident is also covered by the statutory coverage contemplated by Section 147 of the Motor Vehicles Act read with the identical provisions under the very contracts of insurance reflected by the policy which would make the insurance company liable to cover all such claims for compensation for which statutory liability is imposed on the employer under Section 3 read with Section 4-A of the Compensation Act.” [Emphasis supplied] Thereafter, the Bench proceeded to state thus:- “So far as interest is concerned it is almost automatic once default, on the part of the employer in paying the compensation due, takes place beyond the permissible limit of one month. No element of penalty is involved therein. It is a statutory elongation of the liability of the employer to make good the principal amount of compensation within permissible time-limit during which interest may not run but otherwise liability of paying interest on delayed compensation will ipso facto follow.” Though the said decision was rendered in a different context, yet we have referred to the same only to highlight the liability of the insurer in respect of certain classes of employees. 24. It is worthy to note that sub-clause (i)(c) refers to an employee who is being carried in the vehicle covered by the policy. Such vehicle being a goods carriage, an employee has to be covered by the statutory policy. On an apposite reading of Sections 147 and 167 the intendment of the Legislature, as it appears to us, is to cover the injury to any person including the owner of the goods or his authorised representative carried in a vehicle and an employee who is carried in the said vehicle. It is apt to state here that the proviso commences in a different way. A policy is not required to cover the liability of the employee except an employee covered under the 1923 Act and that too in respect of an employee carried in a vehicle. To put it differently, it does not cover all kinds of employees. Thus, on a contextual reading of the provision, schematic analysis of the Act and the 1923 Act, it is quite limpid that the statutory policy only covers the employees of the insured, either employed or engaged by him in a goods carriage. It does not cover any other kind of employee and therefore, someone who travels not being an authorised agent in place of the owner of goods, and claims to be an employee of the owner of goods, cannot be covered by the statutory policy and to hold otherwise would tantamount to causing violence to the language employed in the Statute. Therefore, we conclude that the insurer would not be liable to indemnify the insured.25. Presently, for the sake of completeness, we shall refer to the policy. The policy, exhibit R-2/3/A, clearly states that insurance is only for carriage of goods and does not cover use of carrying passengers other than employees not more than six in number coming under the purview of the 1923 Act. The language used in the policy reads as follows:- “The Policy does not cover :1. Use for organized racing, pace-making reliability trial or speed testing2. Use whilst dwaing a trailer except the towing (other then for reward) or any one disabled mechanically propelled vehicle.3. Use for varying passengers in the vehicle except employees (other than driver) not exceeding six in number coming under the purview of Workmen’s Compensation Act, 1923.” >On a bare reading of the aforesaid policy, there can be no iota of doubt that the policy relates to the insured and it covers six employees (other than the driver, not exceeding six in number) and it is statutory in nature. It neither covers any other category of person nor does it increase any further liability in relation to quantum.26. In view of the aforesaid analysis, we | 0[ds]24. It is worthy to note that sub-clause (i)(c) refers to an employee who is being carried in the vehicle covered by the policy. Such vehicle being a goods carriage, an employee has to be covered by the statutory policy. On an apposite reading of Sections 147 and 167 the intendment of the Legislature, as it appears to us, is to cover the injury to any person including the owner of the goods or his authorised representative carried in a vehicle and an employee who is carried in the said vehicle. It is apt to state here that the proviso commences in a different way. A policy is not required to cover the liability of the employee except an employee covered under the 1923 Act and that too in respect of an employee carried in a vehicle. To put it differently, it does not cover all kinds of employees. Thus, on a contextual reading of the provision, schematic analysis of the Act and the 1923 Act, it is quite limpid that the statutory policy only covers the employees of the insured, either employed or engaged by him in a goods carriage. It does not cover any other kind of employee and therefore, someone who travels not being an authorised agent in place of the owner of goods, and claims to be an employee of the owner of goods, cannot be covered by the statutory policy and to hold otherwise would tantamount to causing violence to the language employed in the Statute. Therefore, we conclude that the insurer would not be liable to indemnify the insured.25. Presently, for the sake of completeness, we shall refer to the policy. The policy, exhibit R-2/3/A, clearly states that insurance is only for carriage of goods and does not cover use of carrying passengers other than employees not more than six in number coming under the purview of the 1923 Act. The language used in the policy reads asPolicy does not cover :1. Use for organized racing, pace-making reliability trial or speed testing2. Use whilst dwaing a trailer except the towing (other then for reward) or any one disabled mechanically propelled vehicle.3. Use for varying passengers in the vehicle except employees (other than driver) not exceeding six in number coming under the purview of>On a bare reading of the aforesaid policy, there can be no iota of doubt that the policy relates to the insured and it covers six employees (other than the driver, not exceeding six in number) and it is statutory in nature. It neither covers any other category of person nor does it increase any further liability in relation to quantum. | 0 | 4,602 | 493 | ### 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:
a claim under the Act as well as under the 1923 Act, the said person is entitled to compensation under either of the Acts, but not under both. 22. Coming to the scheme of the 1923 Act, it is worth noticing that under Section 3 of the said Act, the employer is liable to pay compensation to the workman in respect of personal injury or death caused by an accident arising out of or in the course of his employment. Section 4 provides the procedure how the amount of compensation is to be determined. In this context, we may usefully quote a passage from Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy and Others [(2003) 2 SCC 339] : - “....Section 147 of the Act mandates compulsory coverage against death of or bodily injury to any passenger of “public service vehicle”. The proviso makes it further clear that compulsory coverage in respect of drivers and conductors of public service vehicle and employees carried in goods vehicle would be limited to liability under the Workmen’s Compensation Act, 1923 (in short “the WC Act”). There is no reference to any passenger in “goods carriage.” [Underlining is ours] 23. In Ved Prakash Garg v. Premi Devi and Others [(1997) 8 SCC 1] , after referring to the scheme of the 1923 Act in the context of payment of penalty for default by the insurer under Section 4-A of the Act, this Court held thus: - “On a conjoint operation of the relevant schemes of the aforesaid twin Acts, in our view, there is no escape from the conclusion that the insurance companies will be liable to make good not only the principal amounts of compensation payable by insured employers but also interest thereon, if ordered by the Commissioner to be paid by the insured employers. Reason for this conclusion is obvious. As we have noted earlier the liability to pay compensation under the Workmens Compensation Act gets foisted on the employer provided it is shown that the workman concerned suffered from personal injury, fatal or otherwise, by any motor accident arising out of and in the course of his employment. Such an accident is also covered by the statutory coverage contemplated by Section 147 of the Motor Vehicles Act read with the identical provisions under the very contracts of insurance reflected by the policy which would make the insurance company liable to cover all such claims for compensation for which statutory liability is imposed on the employer under Section 3 read with Section 4-A of the Compensation Act.” [Emphasis supplied] Thereafter, the Bench proceeded to state thus:- “So far as interest is concerned it is almost automatic once default, on the part of the employer in paying the compensation due, takes place beyond the permissible limit of one month. No element of penalty is involved therein. It is a statutory elongation of the liability of the employer to make good the principal amount of compensation within permissible time-limit during which interest may not run but otherwise liability of paying interest on delayed compensation will ipso facto follow.” Though the said decision was rendered in a different context, yet we have referred to the same only to highlight the liability of the insurer in respect of certain classes of employees. 24. It is worthy to note that sub-clause (i)(c) refers to an employee who is being carried in the vehicle covered by the policy. Such vehicle being a goods carriage, an employee has to be covered by the statutory policy. On an apposite reading of Sections 147 and 167 the intendment of the Legislature, as it appears to us, is to cover the injury to any person including the owner of the goods or his authorised representative carried in a vehicle and an employee who is carried in the said vehicle. It is apt to state here that the proviso commences in a different way. A policy is not required to cover the liability of the employee except an employee covered under the 1923 Act and that too in respect of an employee carried in a vehicle. To put it differently, it does not cover all kinds of employees. Thus, on a contextual reading of the provision, schematic analysis of the Act and the 1923 Act, it is quite limpid that the statutory policy only covers the employees of the insured, either employed or engaged by him in a goods carriage. It does not cover any other kind of employee and therefore, someone who travels not being an authorised agent in place of the owner of goods, and claims to be an employee of the owner of goods, cannot be covered by the statutory policy and to hold otherwise would tantamount to causing violence to the language employed in the Statute. Therefore, we conclude that the insurer would not be liable to indemnify the insured.25. Presently, for the sake of completeness, we shall refer to the policy. The policy, exhibit R-2/3/A, clearly states that insurance is only for carriage of goods and does not cover use of carrying passengers other than employees not more than six in number coming under the purview of the 1923 Act. The language used in the policy reads as follows:- “The Policy does not cover :1. Use for organized racing, pace-making reliability trial or speed testing2. Use whilst dwaing a trailer except the towing (other then for reward) or any one disabled mechanically propelled vehicle.3. Use for varying passengers in the vehicle except employees (other than driver) not exceeding six in number coming under the purview of Workmen’s Compensation Act, 1923.” >On a bare reading of the aforesaid policy, there can be no iota of doubt that the policy relates to the insured and it covers six employees (other than the driver, not exceeding six in number) and it is statutory in nature. It neither covers any other category of person nor does it increase any further liability in relation to quantum.26. In view of the aforesaid analysis, we
### Response:
0
### Explanation:
24. It is worthy to note that sub-clause (i)(c) refers to an employee who is being carried in the vehicle covered by the policy. Such vehicle being a goods carriage, an employee has to be covered by the statutory policy. On an apposite reading of Sections 147 and 167 the intendment of the Legislature, as it appears to us, is to cover the injury to any person including the owner of the goods or his authorised representative carried in a vehicle and an employee who is carried in the said vehicle. It is apt to state here that the proviso commences in a different way. A policy is not required to cover the liability of the employee except an employee covered under the 1923 Act and that too in respect of an employee carried in a vehicle. To put it differently, it does not cover all kinds of employees. Thus, on a contextual reading of the provision, schematic analysis of the Act and the 1923 Act, it is quite limpid that the statutory policy only covers the employees of the insured, either employed or engaged by him in a goods carriage. It does not cover any other kind of employee and therefore, someone who travels not being an authorised agent in place of the owner of goods, and claims to be an employee of the owner of goods, cannot be covered by the statutory policy and to hold otherwise would tantamount to causing violence to the language employed in the Statute. Therefore, we conclude that the insurer would not be liable to indemnify the insured.25. Presently, for the sake of completeness, we shall refer to the policy. The policy, exhibit R-2/3/A, clearly states that insurance is only for carriage of goods and does not cover use of carrying passengers other than employees not more than six in number coming under the purview of the 1923 Act. The language used in the policy reads asPolicy does not cover :1. Use for organized racing, pace-making reliability trial or speed testing2. Use whilst dwaing a trailer except the towing (other then for reward) or any one disabled mechanically propelled vehicle.3. Use for varying passengers in the vehicle except employees (other than driver) not exceeding six in number coming under the purview of>On a bare reading of the aforesaid policy, there can be no iota of doubt that the policy relates to the insured and it covers six employees (other than the driver, not exceeding six in number) and it is statutory in nature. It neither covers any other category of person nor does it increase any further liability in relation to quantum.
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Hapag Lloyd India Pvt. Ltd Vs. Principal Commissioner of Income-Tax | Section 264 of the Act, 1961 was not maintainable when the assessee had not made a claim for refund of excess tax paid, in the original return. Mr. Thakkar would urge that the view of respondent no.1 that, for exercise of jurisdiction under Section 264 of the Act, 1961, the order impugned ought to be apparently erroneous, is completely misconceived. Under Section 264 of the Act, 1961, the Commssioner is empowered to call for the record of any proceeding and make inquiry or cause an inquiry to be made and thereafter pass such order, as he thinks fit, but not being the one prejudicial to assessee. The scope is thus not restricted to correction of error apparent on the face of record, urged Mr. Thakkar. 8. In opposition to this, Mr. Walve sought to justify the impugned order on the premise that the refund was not claimed in the original as well as revised return and thus the order passed under Section 143(3) by the Assessing Officer, which was sought to be revised cannot be said to be prejudicial to assessee and, therefore, respondent no.1 was well within his rights in refusing to exercise the revisional jurisdiction. 9. In order to properly appreciate the aforesaid submissions, it may be apposite to extract the relevant part of the reasons ascribed by respondent no.1 in the impugned order. Paragraph 6 reads as under: 6. I have perused the relevant material available on record. I find that the assessee had not made the said claim of refund of excess DDT at the time of filing of return of income i.e. on 30.11.2016. If the assessee company had realized that the said claim of refund of excess DDT remained to be claimed, this claim should have been made while filing revised return of income on 23.12.2016. The assessee company has failed to claim the said claim of refund of excess DDT during the course of assessment proceedings also. Subsequently, the assessment order u/s 143(3) was passed on 18.12.2018 accepting the returned income of the assessee. As such there is no mistake in the order u/s 143(3) of the act. The section 264 has been devised to review the order which is erroneous on the admitted facts of the case. Therefore, as discussed in foregoing paragraphs, in my view the revision for the assessment year under consideration is not maintainable and I do not consider it a fit case for invoking the powers under section 264 of the Incometax Act, 1961. Thus, in view of the facts of the case, the reasons mentioned above, on the application under section 264 of the Income-tax Act, 1961. Thus, in view of the facts of the case, the reasons mentioned above, on the application under section 264 of the Income-tax Act, 1961 filed by the assessee company, I DECLINE TO INVOKE THE PROVISIONS OF SECTION 264 of the Income-tax Act, 1961 for the A.Y. 2016- 2017. Thus, the application filed by the assessee u/s 264 of the IT Act, 1961 is hereby rejected. (emphasis supplied) 10. From the perusal of the aforesaid reasons, it becomes evident that two factors weighed with respondent no.1. First, the assessee had not claimed refund in the original and revised return and, thus, there was no error in the assessment order passed under Section 143(3) on 18th December, 2018. Second, respondent no.1 was of the view that the jurisdiction under Section 264 was confined to correct the order which is found to be apparently erroneous. 11. Respondent no.1 was justified in recording that the assessee had not claimed refund of excess tax paid by it in the original and revised return. However, respondent no.1 committed an error in constricting the scope of revisional jurisdiction, in the backdrop of the said undisputed factual position. In fact, the very foundation of the application under Section 264 of the Act, 1961 was that the assessee had inadvertently failed to claim the benefit of Article 10 of the India – Kuwait DTAA, under which the dividend distribution was taxed at a lower rate. We are of the view that the approach of respondent no.1 in refusing to exercise the jurisdiction under Section 264 of the Act, 1961 on the premise that it can be lawfully exercised only where such a refund was claimed and considered by the Assessing Officer is neither borne out by the text of Section 264 of the Act, 1961 nor the construction put thereon by the precedents. 12. The aforesaid reasoning indicates that respondent no.1 failed to appreciate the distinction between revisional and review jurisdiction. The principles which govern the exercise of review were sought to be unjustifiably imported to the exercise of power under Section 264 of the Act, 1961 and thereby imposing limitations which do not exist on exercise of such power. Undoubtedly, revisional jurisdiction is not as wide as an appellate jurisdiction. At the same time, revisional jurisdiction cannot be confused with the power of review, which by its very nature is limited. 13. Mr. Thakkar was justified in placing reliance on a Division Bench Judgment of this Court in the case of Geekay Security Services (P) Ltd. vs. Deputy Commissioner of Income Tax, Circle3(1)(2) ([2019 101 taxmann.com 192 (Bombay)) wherein the Division Bench considered an identical question as to whether the revisional authority was justified in rejecting the revision application solely on the ground that the applicant had not claimed the benefit in the original return. After adverting to the previous pronouncements of various High Courts, this concurred with the view that Section 264 does not limit the power to correct errors committed by the sub-ordinate authorities and could even be exercised where errors are committed by the assessee and there is nothing in Section 264 which places any restriction on the Commissioners revisional power to give relief to the assessee in a case where assessee detects mistakes after the assessment is completed. 14. The aforesaid pronouncement is on all four with the facts of the case at hand. | 1[ds]10. From the perusal of the aforesaid reasons, it becomes evident that two factors weighed with respondent no.1. First, the assessee had not claimed refund in the original and revised return and, thus, there was no error in the assessment order passed under Section 143(3) on 18th December, 2018. Second, respondent no.1 was of the view that the jurisdiction under Section 264 was confined to correct the order which is found to be apparently erroneous.11. Respondent no.1 was justified in recording that the assessee had not claimed refund of excess tax paid by it in the original and revised return. However, respondent no.1 committed an error in constricting the scope of revisional jurisdiction, in the backdrop of the said undisputed factual position. In fact, the very foundation of the application under Section 264 of the Act, 1961 was that the assessee had inadvertently failed to claim the benefit of Article 10 of the India – Kuwait DTAA, under which the dividend distribution was taxed at a lower rate. We are of the view that the approach of respondent no.1 in refusing to exercise the jurisdiction under Section 264 of the Act, 1961 on the premise that it can be lawfully exercised only where such a refund was claimed and considered by the Assessing Officer is neither borne out by the text of Section 264 of the Act, 1961 nor the construction put thereon by the precedents.12. The aforesaid reasoning indicates that respondent no.1 failed to appreciate the distinction between revisional and review jurisdiction. The principles which govern the exercise of review were sought to be unjustifiably imported to the exercise of power under Section 264 of the Act, 1961 and thereby imposing limitations which do not exist on exercise of such power. Undoubtedly, revisional jurisdiction is not as wide as an appellate jurisdiction. At the same time, revisional jurisdiction cannot be confused with the power of review, which by its very nature is limited.13. Mr. Thakkar was justified in placing reliance on a Division Bench Judgment of this Court in the case of Geekay Security Services (P) Ltd. vs. Deputy Commissioner of Income Tax, Circle3(1)(2) ([2019 101 taxmann.com 192 (Bombay)) wherein the Division Bench considered an identical question as to whether the revisional authority was justified in rejecting the revision application solely on the ground that the applicant had not claimed the benefit in the original return. After adverting to the previous pronouncements of various High Courts, this concurred with the view that Section 264 does not limit the power to correct errors committed by the sub-ordinate authorities and could even be exercised where errors are committed by the assessee and there is nothing in Section 264 which places any restriction on the Commissioners revisional power to give relief to the assessee in a case where assessee detects mistakes after the assessment is completed.14. The aforesaid pronouncement is on all four with the facts of the case at hand. | 1 | 1,841 | 544 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
### Input:
Section 264 of the Act, 1961 was not maintainable when the assessee had not made a claim for refund of excess tax paid, in the original return. Mr. Thakkar would urge that the view of respondent no.1 that, for exercise of jurisdiction under Section 264 of the Act, 1961, the order impugned ought to be apparently erroneous, is completely misconceived. Under Section 264 of the Act, 1961, the Commssioner is empowered to call for the record of any proceeding and make inquiry or cause an inquiry to be made and thereafter pass such order, as he thinks fit, but not being the one prejudicial to assessee. The scope is thus not restricted to correction of error apparent on the face of record, urged Mr. Thakkar. 8. In opposition to this, Mr. Walve sought to justify the impugned order on the premise that the refund was not claimed in the original as well as revised return and thus the order passed under Section 143(3) by the Assessing Officer, which was sought to be revised cannot be said to be prejudicial to assessee and, therefore, respondent no.1 was well within his rights in refusing to exercise the revisional jurisdiction. 9. In order to properly appreciate the aforesaid submissions, it may be apposite to extract the relevant part of the reasons ascribed by respondent no.1 in the impugned order. Paragraph 6 reads as under: 6. I have perused the relevant material available on record. I find that the assessee had not made the said claim of refund of excess DDT at the time of filing of return of income i.e. on 30.11.2016. If the assessee company had realized that the said claim of refund of excess DDT remained to be claimed, this claim should have been made while filing revised return of income on 23.12.2016. The assessee company has failed to claim the said claim of refund of excess DDT during the course of assessment proceedings also. Subsequently, the assessment order u/s 143(3) was passed on 18.12.2018 accepting the returned income of the assessee. As such there is no mistake in the order u/s 143(3) of the act. The section 264 has been devised to review the order which is erroneous on the admitted facts of the case. Therefore, as discussed in foregoing paragraphs, in my view the revision for the assessment year under consideration is not maintainable and I do not consider it a fit case for invoking the powers under section 264 of the Incometax Act, 1961. Thus, in view of the facts of the case, the reasons mentioned above, on the application under section 264 of the Income-tax Act, 1961. Thus, in view of the facts of the case, the reasons mentioned above, on the application under section 264 of the Income-tax Act, 1961 filed by the assessee company, I DECLINE TO INVOKE THE PROVISIONS OF SECTION 264 of the Income-tax Act, 1961 for the A.Y. 2016- 2017. Thus, the application filed by the assessee u/s 264 of the IT Act, 1961 is hereby rejected. (emphasis supplied) 10. From the perusal of the aforesaid reasons, it becomes evident that two factors weighed with respondent no.1. First, the assessee had not claimed refund in the original and revised return and, thus, there was no error in the assessment order passed under Section 143(3) on 18th December, 2018. Second, respondent no.1 was of the view that the jurisdiction under Section 264 was confined to correct the order which is found to be apparently erroneous. 11. Respondent no.1 was justified in recording that the assessee had not claimed refund of excess tax paid by it in the original and revised return. However, respondent no.1 committed an error in constricting the scope of revisional jurisdiction, in the backdrop of the said undisputed factual position. In fact, the very foundation of the application under Section 264 of the Act, 1961 was that the assessee had inadvertently failed to claim the benefit of Article 10 of the India – Kuwait DTAA, under which the dividend distribution was taxed at a lower rate. We are of the view that the approach of respondent no.1 in refusing to exercise the jurisdiction under Section 264 of the Act, 1961 on the premise that it can be lawfully exercised only where such a refund was claimed and considered by the Assessing Officer is neither borne out by the text of Section 264 of the Act, 1961 nor the construction put thereon by the precedents. 12. The aforesaid reasoning indicates that respondent no.1 failed to appreciate the distinction between revisional and review jurisdiction. The principles which govern the exercise of review were sought to be unjustifiably imported to the exercise of power under Section 264 of the Act, 1961 and thereby imposing limitations which do not exist on exercise of such power. Undoubtedly, revisional jurisdiction is not as wide as an appellate jurisdiction. At the same time, revisional jurisdiction cannot be confused with the power of review, which by its very nature is limited. 13. Mr. Thakkar was justified in placing reliance on a Division Bench Judgment of this Court in the case of Geekay Security Services (P) Ltd. vs. Deputy Commissioner of Income Tax, Circle3(1)(2) ([2019 101 taxmann.com 192 (Bombay)) wherein the Division Bench considered an identical question as to whether the revisional authority was justified in rejecting the revision application solely on the ground that the applicant had not claimed the benefit in the original return. After adverting to the previous pronouncements of various High Courts, this concurred with the view that Section 264 does not limit the power to correct errors committed by the sub-ordinate authorities and could even be exercised where errors are committed by the assessee and there is nothing in Section 264 which places any restriction on the Commissioners revisional power to give relief to the assessee in a case where assessee detects mistakes after the assessment is completed. 14. The aforesaid pronouncement is on all four with the facts of the case at hand.
### Response:
1
### Explanation:
10. From the perusal of the aforesaid reasons, it becomes evident that two factors weighed with respondent no.1. First, the assessee had not claimed refund in the original and revised return and, thus, there was no error in the assessment order passed under Section 143(3) on 18th December, 2018. Second, respondent no.1 was of the view that the jurisdiction under Section 264 was confined to correct the order which is found to be apparently erroneous.11. Respondent no.1 was justified in recording that the assessee had not claimed refund of excess tax paid by it in the original and revised return. However, respondent no.1 committed an error in constricting the scope of revisional jurisdiction, in the backdrop of the said undisputed factual position. In fact, the very foundation of the application under Section 264 of the Act, 1961 was that the assessee had inadvertently failed to claim the benefit of Article 10 of the India – Kuwait DTAA, under which the dividend distribution was taxed at a lower rate. We are of the view that the approach of respondent no.1 in refusing to exercise the jurisdiction under Section 264 of the Act, 1961 on the premise that it can be lawfully exercised only where such a refund was claimed and considered by the Assessing Officer is neither borne out by the text of Section 264 of the Act, 1961 nor the construction put thereon by the precedents.12. The aforesaid reasoning indicates that respondent no.1 failed to appreciate the distinction between revisional and review jurisdiction. The principles which govern the exercise of review were sought to be unjustifiably imported to the exercise of power under Section 264 of the Act, 1961 and thereby imposing limitations which do not exist on exercise of such power. Undoubtedly, revisional jurisdiction is not as wide as an appellate jurisdiction. At the same time, revisional jurisdiction cannot be confused with the power of review, which by its very nature is limited.13. Mr. Thakkar was justified in placing reliance on a Division Bench Judgment of this Court in the case of Geekay Security Services (P) Ltd. vs. Deputy Commissioner of Income Tax, Circle3(1)(2) ([2019 101 taxmann.com 192 (Bombay)) wherein the Division Bench considered an identical question as to whether the revisional authority was justified in rejecting the revision application solely on the ground that the applicant had not claimed the benefit in the original return. After adverting to the previous pronouncements of various High Courts, this concurred with the view that Section 264 does not limit the power to correct errors committed by the sub-ordinate authorities and could even be exercised where errors are committed by the assessee and there is nothing in Section 264 which places any restriction on the Commissioners revisional power to give relief to the assessee in a case where assessee detects mistakes after the assessment is completed.14. The aforesaid pronouncement is on all four with the facts of the case at hand.
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Patna Electric Supply Company Limited Vs. Patna Municipal Corporation & Others | December 26, 1967, the Administrator issued an order imposing a ground rent of Rs. 1/50 paise per pole per month and forwarded a bill for Rs. 51,300/- in respect of the rent alleged to be due for the month of December 1967. Therein it held out a threat that if the rent demanded is not paid, coercive processes under Section 205 and 206 of the Patna Municipal Corporation Act would be taken against the petitioner. The petitioner again repudiated its liability to pay any rent as per its letter of December 30, 1967 and requested the Administrator to let the petitioner know the legal basis on which the rent is demanded. As per its letter of January 24, 1968, the Deputy Administrator of the Corporation informed the petitioner that the levy was made in pursuance of the power conferred on the Corporation under Section 262 of the Patna Municipal Corporation Act. By the letter dated January 18, 1968, the Resident Engineer of the Petitioner Company informed the Corporation that it had no power to levy the rent in question under the aforementioned Sec. 262. But the Administrator again asserted the Corporation s right to act under that provision as per his letter dated January 30, 1968. On February 5, 1968, the Assistant Administrator claimed a sum of Rs. 1,53,900/- as arrears of rent. On March 7, 1968, another bill for Rs.51,300/- as arrears of rent for the month of March, 1968, was forwarded to the petitioner company by the Administrator. Being apprehensive that coercive steps will be taken against the petitioner-company, it moved the High Court under Article 226 of the Constitution for the reliefs mentioned earlier.3. The petition was opposed by the Corporation on various grounds but the High Court did not examine any one of those grounds. On the other hand it rejected the application on the sole ground that the only method prescribed by law for resolving the controversy between the petitioner-company and the Corporation was that provided by Section 15 of the Indian Telegraph Act, 1885.4. In our opinion the High Court has misread the provisions of the Indian Electricity Act, 1910 and the Indian Telegraph Act, 1885. The High Court purported to have based its decision on Section 51 of the Indian Electricity Act. That section reads thus:"Notwithstanding anything in Secs. 12 to 16 (both inclusive) and Section 18 and 19, the (State Government) may, by order in writing, for the placing of (electric supply-lines, appliances and apparatus for the transmission of energy or for the purpose of telephonic or telegraphic communications necessary for the proper-co-ordination of works, confer upon any public officer, licensee or any other person engaged in the business of supplying energy to the public under this Act), subject to such conditions and restrictions (if any) as the (State Government) may think fit to impose, and to the provisions of the Indian Telegraph Act, 1885, any of the powers which the telegraph authority possesses under that Act, with respect to the placing of telegraph lines and posts for the purposes of a telegraph established or maintained by the Government or to be so established or maintained".5. Under notification No. 64/Elec. dated 11th August, 1966, the State Government conferred upon the petitioner powers for placing of electric supply-lines appliances and apparatus for the transmission and distribution of the energy by it within the area of its supply which the telegraph authority possesses under Sections 10 to 18 and 19A of the Indian Telegraph Act with respect to placing of telegraph lines and posts.Section 51 merely empowers the State Government to confer on the licensee certain powers which can be exercised by a telegraph authority under the Indian Telegraph Act. It does not by reference incorporate into the Indian Electricity Act all the provisions of the Indian Telegraph Act.6. Merely because some of the powers conferred under the Indian Telegraph Act on the telegraph authority could be conferred on a licensee under the Indian Electricity Act, it does not follow that all the rights and liabilities of a licensee under the Indian Electricity Act are governed by the provisions of the Indian Telegraph Act.7. Section 15 of the Indian Telegraph Act reads thus:"(1) If any dispute arises between the telegraph authority and a local authority in consequence of the local authority refusing the permission referred to in Section 10, clause (c), or prescribing any condition under Section 12, or in consequence of the telegraph authority omitting to comply with a requisition made under Section 13, or otherwise in respect of the exercise of the powers conferred by this Act, it shall be determined by such officer as the (Central Government) may appoint either generally or specially in this behalf.(2) An appeal from the determination of the officer so appointed shall lie to the (Central Government) and the order of the (Central Government) shall be final".8. Before this provision can be called into aid for the determination of any dispute, the dispute must arise between the Telegraph authority and a Local Authority. A licensee under the Indian Electricity Act cannot be considered as a Telegraph authority, an expression defined in Section 3 (6) of the Telegraph Act. Further that the disputes that can be referred to arbitration under that provision are only those referred to in that section and no other.9. In our opinion the High Court erred in rejecting the petition on the ground that the dispute in question should be referred to arbitration under Section 15 of the Indian Telegraph Act.10. Mr. S. V. Gupte, learned Counsel for the Corporation did not support the reasons given by the High Court in support of its judgment. On the other hand he contended that on the basis of the averments made in the application, the relief asked for by the petitioner could not have been granted and therefore the High Court was right in rejecting the same. The High Court has not considered this question. Hence we do not propose to go into the same. | 1[ds]4. In our opinion the High Court has misread the provisions of the Indian Electricity Act, 1910 and the Indian Telegraph Act, 1885. The High Court purported to have based its decision on Section 51 of the Indian Electricity51 merely empowers the State Government to confer on the licensee certain powers which can be exercised by a telegraph authority under the Indian Telegraph Act. It does not by reference incorporate into the Indian Electricity Act all the provisions of the Indian Telegraph Act.6. Merely because some of the powers conferred under the Indian Telegraph Act on the telegraph authority could be conferred on a licensee under the Indian Electricity Act, it does not follow that all the rights and liabilities of a licensee under the Indian Electricity Act are governed by the provisions of the Indian Telegraphlicensee under the Indian Electricity Act cannot be considered as a Telegraph authority, an expression defined in Section 3 (6) of the Telegraph Act. Further that the disputes that can be referred to arbitration under that provision are only those referred to in that section and no other.9. In our opinion the High Court erred in rejecting the petition on the ground that the dispute in question should be referred to arbitration under Section 15 of the Indian Telegraph Act.Mr. S. V. Gupte, learned Counsel for the Corporation did not support the reasons given by the High Court in support of its judgment. On the other hand he contended that on the basis of the averments made in the application, the relief asked for by the petitioner could not have been granted and therefore the High Court was right in rejecting the same.The High Court has not considered this question. Hence we do not propose to go into the same. | 1 | 1,413 | 319 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
### Input:
December 26, 1967, the Administrator issued an order imposing a ground rent of Rs. 1/50 paise per pole per month and forwarded a bill for Rs. 51,300/- in respect of the rent alleged to be due for the month of December 1967. Therein it held out a threat that if the rent demanded is not paid, coercive processes under Section 205 and 206 of the Patna Municipal Corporation Act would be taken against the petitioner. The petitioner again repudiated its liability to pay any rent as per its letter of December 30, 1967 and requested the Administrator to let the petitioner know the legal basis on which the rent is demanded. As per its letter of January 24, 1968, the Deputy Administrator of the Corporation informed the petitioner that the levy was made in pursuance of the power conferred on the Corporation under Section 262 of the Patna Municipal Corporation Act. By the letter dated January 18, 1968, the Resident Engineer of the Petitioner Company informed the Corporation that it had no power to levy the rent in question under the aforementioned Sec. 262. But the Administrator again asserted the Corporation s right to act under that provision as per his letter dated January 30, 1968. On February 5, 1968, the Assistant Administrator claimed a sum of Rs. 1,53,900/- as arrears of rent. On March 7, 1968, another bill for Rs.51,300/- as arrears of rent for the month of March, 1968, was forwarded to the petitioner company by the Administrator. Being apprehensive that coercive steps will be taken against the petitioner-company, it moved the High Court under Article 226 of the Constitution for the reliefs mentioned earlier.3. The petition was opposed by the Corporation on various grounds but the High Court did not examine any one of those grounds. On the other hand it rejected the application on the sole ground that the only method prescribed by law for resolving the controversy between the petitioner-company and the Corporation was that provided by Section 15 of the Indian Telegraph Act, 1885.4. In our opinion the High Court has misread the provisions of the Indian Electricity Act, 1910 and the Indian Telegraph Act, 1885. The High Court purported to have based its decision on Section 51 of the Indian Electricity Act. That section reads thus:"Notwithstanding anything in Secs. 12 to 16 (both inclusive) and Section 18 and 19, the (State Government) may, by order in writing, for the placing of (electric supply-lines, appliances and apparatus for the transmission of energy or for the purpose of telephonic or telegraphic communications necessary for the proper-co-ordination of works, confer upon any public officer, licensee or any other person engaged in the business of supplying energy to the public under this Act), subject to such conditions and restrictions (if any) as the (State Government) may think fit to impose, and to the provisions of the Indian Telegraph Act, 1885, any of the powers which the telegraph authority possesses under that Act, with respect to the placing of telegraph lines and posts for the purposes of a telegraph established or maintained by the Government or to be so established or maintained".5. Under notification No. 64/Elec. dated 11th August, 1966, the State Government conferred upon the petitioner powers for placing of electric supply-lines appliances and apparatus for the transmission and distribution of the energy by it within the area of its supply which the telegraph authority possesses under Sections 10 to 18 and 19A of the Indian Telegraph Act with respect to placing of telegraph lines and posts.Section 51 merely empowers the State Government to confer on the licensee certain powers which can be exercised by a telegraph authority under the Indian Telegraph Act. It does not by reference incorporate into the Indian Electricity Act all the provisions of the Indian Telegraph Act.6. Merely because some of the powers conferred under the Indian Telegraph Act on the telegraph authority could be conferred on a licensee under the Indian Electricity Act, it does not follow that all the rights and liabilities of a licensee under the Indian Electricity Act are governed by the provisions of the Indian Telegraph Act.7. Section 15 of the Indian Telegraph Act reads thus:"(1) If any dispute arises between the telegraph authority and a local authority in consequence of the local authority refusing the permission referred to in Section 10, clause (c), or prescribing any condition under Section 12, or in consequence of the telegraph authority omitting to comply with a requisition made under Section 13, or otherwise in respect of the exercise of the powers conferred by this Act, it shall be determined by such officer as the (Central Government) may appoint either generally or specially in this behalf.(2) An appeal from the determination of the officer so appointed shall lie to the (Central Government) and the order of the (Central Government) shall be final".8. Before this provision can be called into aid for the determination of any dispute, the dispute must arise between the Telegraph authority and a Local Authority. A licensee under the Indian Electricity Act cannot be considered as a Telegraph authority, an expression defined in Section 3 (6) of the Telegraph Act. Further that the disputes that can be referred to arbitration under that provision are only those referred to in that section and no other.9. In our opinion the High Court erred in rejecting the petition on the ground that the dispute in question should be referred to arbitration under Section 15 of the Indian Telegraph Act.10. Mr. S. V. Gupte, learned Counsel for the Corporation did not support the reasons given by the High Court in support of its judgment. On the other hand he contended that on the basis of the averments made in the application, the relief asked for by the petitioner could not have been granted and therefore the High Court was right in rejecting the same. The High Court has not considered this question. Hence we do not propose to go into the same.
### Response:
1
### Explanation:
4. In our opinion the High Court has misread the provisions of the Indian Electricity Act, 1910 and the Indian Telegraph Act, 1885. The High Court purported to have based its decision on Section 51 of the Indian Electricity51 merely empowers the State Government to confer on the licensee certain powers which can be exercised by a telegraph authority under the Indian Telegraph Act. It does not by reference incorporate into the Indian Electricity Act all the provisions of the Indian Telegraph Act.6. Merely because some of the powers conferred under the Indian Telegraph Act on the telegraph authority could be conferred on a licensee under the Indian Electricity Act, it does not follow that all the rights and liabilities of a licensee under the Indian Electricity Act are governed by the provisions of the Indian Telegraphlicensee under the Indian Electricity Act cannot be considered as a Telegraph authority, an expression defined in Section 3 (6) of the Telegraph Act. Further that the disputes that can be referred to arbitration under that provision are only those referred to in that section and no other.9. In our opinion the High Court erred in rejecting the petition on the ground that the dispute in question should be referred to arbitration under Section 15 of the Indian Telegraph Act.Mr. S. V. Gupte, learned Counsel for the Corporation did not support the reasons given by the High Court in support of its judgment. On the other hand he contended that on the basis of the averments made in the application, the relief asked for by the petitioner could not have been granted and therefore the High Court was right in rejecting the same.The High Court has not considered this question. Hence we do not propose to go into the same.
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Krishi Utpadan Mandi Samiti Vs. Pilibhit Pantnagar Beej Ltd. | a commodity distinct from foodgrains as commonly understood. That distinction was borne in mind by the High Court in allowing the writ petition of the respondents, and in our view rightly." 31. The other decisions cited by the counsel for the appellants will not be of any assistance in deciding the factual dispute involved in the instant case. 32. In our view, the High Court has correctly applied the above judgment. This Court held that no market fee could be levied by the State of Rajasthan on seeds on the ground that a seed was distinct from foodgrains inasmuch as they were not fit for human consumption. The ratio decidendi of the above decision is squarely applicable to this case wherein the appellant seeks to give a wide connotation to the words in the Schedule. In our opinion, that giving a wide interpretation is not possible and as Wheat Seed is not included in the Schedule, the Mandi Samiti is not allowed to levy a market fee on purchase. As the Mandi Samiti plays no role in the trade of the respondents seeds, it may not be allowed to levy the market fee. It is also not in dispute that the Breeder Seeds are allocated by the Ministry of Agriculture or by the Universities to the various seed producing agencies and companies who multiply the breeder seeds into foundations seeds. 33. It is also very useful to refer hereunder the process by which the seeds is manufactured under the Seeds Act and the Seeds Rules: "(i) Seeds developed in laboratories are classified as Breeder Seeds and are sold through the Ministry of Agriculture or notified Agriculture Universities to producing agencies, Companies and farmers. Foundation Seeds (Stage I and II) are developed as progenies of Breeder Seeds and are required to obtain a Certificate from the Seed Certification Agency.(ii) The production of Foundation Seeds is supervised and approved by the Certification Agency to maintain specific genetic identity and genetic purity and are required to conform to certification specified for the crop/variety being certified.(iii) The Foundation Seed is then grown by the farmer in a land earmarked specifically for the sowing of the Foundation Seed. The offsprings of these Seeds are terms as Certified Seeds, which too are required to meet the minimum standards of genetic purity and genetic identity.(iv) It is only if the Seeds meet the minimum standards are they subsequently categories as Certified Seeds and can be purchased by the respondent for further processing.(v) The processing done by the respondent is done under the aegis of an Inspector of the State Seed Certification Agency and thereafter the samples are taken for testing to notified Government Seed Testing laboratories.(vi) It is only after meeting the minimum standards of genetic purity and genetic identity that the Seed is put in a bag that is sealed and tagged by the Inspector of the Seed Certification Agency. It is this seed which is allowed to be sold in the market and a certificate is issued by the Agency stating the standards of the Seed and other particulars". 34. It was submitted by the first respondent that all the above mentioned stages of Certification are as per the provisions of the Rules and that right from the inception to the time when the Seed is sold in the market, it is done under regulation issued to govern each and every stage of seed production and certificates are only issued after the seed is found to achieve the minimum standards of genetic identify and genetic purity. It was also pointed out that no such certification standards exist for food grains sold by farmers to the Mandi Samiti. Thus the production of seeds is an integrated process and needs to be regulated at every stage, right from the inception, in order to maintain genetic identity and genetic purity.35. There is no nexus whether the seed has been chemically treated or not and the levy of market fees. Since the seed is a separate commodity from grain, the same is not covered under Schedule I of the Adhiniyam and as such no market fee is leviable over the sale and/ or purchase of the same.36. We are, thereafter, of the view that the seeds are not specified agricultural produce under the provisions of the Act and, therefore, the business of purchase and sale of seeds under the supervision of Seed Certification Agency established under the Act is not a business of sale and purchase of specified agricultural produce and as such the first respondent is not required to pay the market fee or to take out a licence.37. We are also of the view that the respondents have grossly erred in ignoring the law settled by this Court in the case of State of Rajasthan vs. Rajasthan Agricultural Input dealers Association (supra) under Article 141 of the Constitution in demanding market fee on seeds. Since the processing of wheat resulting in loss of its basic characteristics of being cereal,, it cannot be subjected to levy as agricultural produce since the purchase by the respondent is for the purpose of growing seeds, no levy is permissible and, therefore, market fee cannot be imposed on seeds which are unfit for human consumption.Question No. I38. Thus, the true scope and ambit of Section 2(a) and 17(iii) (b) of the Act has been explained in paras supra.Question No. II39. The appellant has no authority to levy market fee on the purchase of wheat by the seed processing unit. This question is answered in the negative.Question No. III40. Wheat seed converted into certified seed is unfit for human consumption and, therefore, market fee levy is impermissible.Question No. IV41. The object of legislature was to notify only those seeds which are different from the produce itself. 42. Thus all the questions are answered as above. 43. The argument of the counsel for the first respondent is well merited and founded on sound legal principles and on practical and factual aspects of the matter. | 0[ds]24. We have already reproduced Section 2(a) and Section 17(iii) of the Adhiniyam. Section 17(iii) of the Adhiniyam provides for imposition of market fee on the transactions of sale of specified agricultural produce in the market area at such rates notified by the State. As already noticed, Wheat is specified in the Schedule at S. No.1 under the Heading Cereals. A perusal of the Schedule would show that wherever seeds have been intended to be notified, it has been specifically mentioned as Seeds. In case of Wheat, however, Schedule does not provide or notify seed of wheat and thus the seeds of wheat are not specified in the Schedule and are thus not covered by the definition of Agricultural produce. We have also referred to the Objects and Reasons for enacting the Seeds Act, 1966 and the Seeds Rules, Rules, 1968. As already seen, Seeds Rule 1968 have made detailed provisions of production, processing and certification of seeds under the Seed Certification Agency. The Central Government in order to exempt the movement of seeds and in exercise of its powers under the Essential Commodities Act, has enacted Foodgrains Movement Restriction (Exemption of Seeds) Orders, 1970 and the Seeds Control Order, 1983. The seeds are also exempted from Sales Tax under an exemption dated 19.8.1970 issued under Section 4(1)(a) of the Act (Annexure CA 3).25. We have already referred to the essential conditions incorporated in the Certificate of Registration. One of the essential conditions incorporated in the Certificate of Registration is that the certificate holder shall not carry on any business such as dealing in food grains, other than the business of sale of certified seeds. Under the terms and conditions of such certificate, the first respondent is not carrying any other business except the business of certified seeds and it is also not in dispute that the respondent does not hold any other licence for dealing in food grains includingHigh Court has, in our view, correctly appreciated and accepted the contention of the respondent-Company and has rightly relied upon the judgment of this Court in State of Rajasthan vs. Agricultural Input Dealers Association (Supra).In our view, the High Court has correctly applied the above judgment. This Court held that no market fee could be levied by the State of Rajasthan on seeds on the ground that a seed was distinct from foodgrains inasmuch as they were not fit for human consumption. The ratio decidendi of the above decision is squarely applicable to this case wherein the appellant seeks to give a wide connotation to the words in the Schedule. In our opinion, that giving a wide interpretation is not possible and as Wheat Seed is not included in the Schedule, the Mandi Samiti is not allowed to levy a market fee on purchase. As the Mandi Samiti plays no role in the trade of the respondents seeds, it may not be allowed to levy the market fee. It is also not in dispute that the Breeder Seeds are allocated by the Ministry of Agriculture or by the Universities to the various seed producing agencies and companies who multiply the breeder seeds into foundations seeds.There is no nexus whether the seed has been chemically treated or not and the levy of market fees. Since the seed is a separate commodity from grain, the same is not covered under Schedule I of the Adhiniyam and as such no market fee is leviable over the sale and/ or purchase of the same.36. We are, thereafter, of the view that the seeds are not specified agricultural produce under the provisions of the Act and, therefore, the business of purchase and sale of seeds under the supervision of Seed Certification Agency established under the Act is not a business of sale and purchase of specified agricultural produce and as such the first respondent is not required to pay the market fee or to take out a licence.37. We are also of the view that the respondents have grossly erred in ignoring the law settled by this Court in the case of State of Rajasthan vs. Rajasthan Agricultural Input dealers Association (supra) under Article 141 of the Constitution in demanding market fee on seeds. Since the processing of wheat resulting in loss of its basic characteristics of being cereal,, it cannot be subjected to levy as agricultural produce since the purchase by the respondent is for the purpose of growing seeds, no levy is permissible and, therefore, market fee cannot be imposed on seeds which are unfit for human consumption.Question No. I38. Thus, the true scope and ambit of Section 2(a) and 17(iii) (b) of the Act has been explained in paras supra.Question No. II39. The appellant has no authority to levy market fee on the purchase of wheat by the seed processing unit. This question is answered in the negative.Question No. III40. Wheat seed converted into certified seed is unfit for human consumption and, therefore, market fee levy is impermissible.Question No. IV41. The object of legislature was to notify only those seeds which are different from the produce itself.The argument of the counsel for the first respondent is well merited and founded on sound legal principles and on practical and factual aspects of the | 0 | 7,190 | 972 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
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a commodity distinct from foodgrains as commonly understood. That distinction was borne in mind by the High Court in allowing the writ petition of the respondents, and in our view rightly." 31. The other decisions cited by the counsel for the appellants will not be of any assistance in deciding the factual dispute involved in the instant case. 32. In our view, the High Court has correctly applied the above judgment. This Court held that no market fee could be levied by the State of Rajasthan on seeds on the ground that a seed was distinct from foodgrains inasmuch as they were not fit for human consumption. The ratio decidendi of the above decision is squarely applicable to this case wherein the appellant seeks to give a wide connotation to the words in the Schedule. In our opinion, that giving a wide interpretation is not possible and as Wheat Seed is not included in the Schedule, the Mandi Samiti is not allowed to levy a market fee on purchase. As the Mandi Samiti plays no role in the trade of the respondents seeds, it may not be allowed to levy the market fee. It is also not in dispute that the Breeder Seeds are allocated by the Ministry of Agriculture or by the Universities to the various seed producing agencies and companies who multiply the breeder seeds into foundations seeds. 33. It is also very useful to refer hereunder the process by which the seeds is manufactured under the Seeds Act and the Seeds Rules: "(i) Seeds developed in laboratories are classified as Breeder Seeds and are sold through the Ministry of Agriculture or notified Agriculture Universities to producing agencies, Companies and farmers. Foundation Seeds (Stage I and II) are developed as progenies of Breeder Seeds and are required to obtain a Certificate from the Seed Certification Agency.(ii) The production of Foundation Seeds is supervised and approved by the Certification Agency to maintain specific genetic identity and genetic purity and are required to conform to certification specified for the crop/variety being certified.(iii) The Foundation Seed is then grown by the farmer in a land earmarked specifically for the sowing of the Foundation Seed. The offsprings of these Seeds are terms as Certified Seeds, which too are required to meet the minimum standards of genetic purity and genetic identity.(iv) It is only if the Seeds meet the minimum standards are they subsequently categories as Certified Seeds and can be purchased by the respondent for further processing.(v) The processing done by the respondent is done under the aegis of an Inspector of the State Seed Certification Agency and thereafter the samples are taken for testing to notified Government Seed Testing laboratories.(vi) It is only after meeting the minimum standards of genetic purity and genetic identity that the Seed is put in a bag that is sealed and tagged by the Inspector of the Seed Certification Agency. It is this seed which is allowed to be sold in the market and a certificate is issued by the Agency stating the standards of the Seed and other particulars". 34. It was submitted by the first respondent that all the above mentioned stages of Certification are as per the provisions of the Rules and that right from the inception to the time when the Seed is sold in the market, it is done under regulation issued to govern each and every stage of seed production and certificates are only issued after the seed is found to achieve the minimum standards of genetic identify and genetic purity. It was also pointed out that no such certification standards exist for food grains sold by farmers to the Mandi Samiti. Thus the production of seeds is an integrated process and needs to be regulated at every stage, right from the inception, in order to maintain genetic identity and genetic purity.35. There is no nexus whether the seed has been chemically treated or not and the levy of market fees. Since the seed is a separate commodity from grain, the same is not covered under Schedule I of the Adhiniyam and as such no market fee is leviable over the sale and/ or purchase of the same.36. We are, thereafter, of the view that the seeds are not specified agricultural produce under the provisions of the Act and, therefore, the business of purchase and sale of seeds under the supervision of Seed Certification Agency established under the Act is not a business of sale and purchase of specified agricultural produce and as such the first respondent is not required to pay the market fee or to take out a licence.37. We are also of the view that the respondents have grossly erred in ignoring the law settled by this Court in the case of State of Rajasthan vs. Rajasthan Agricultural Input dealers Association (supra) under Article 141 of the Constitution in demanding market fee on seeds. Since the processing of wheat resulting in loss of its basic characteristics of being cereal,, it cannot be subjected to levy as agricultural produce since the purchase by the respondent is for the purpose of growing seeds, no levy is permissible and, therefore, market fee cannot be imposed on seeds which are unfit for human consumption.Question No. I38. Thus, the true scope and ambit of Section 2(a) and 17(iii) (b) of the Act has been explained in paras supra.Question No. II39. The appellant has no authority to levy market fee on the purchase of wheat by the seed processing unit. This question is answered in the negative.Question No. III40. Wheat seed converted into certified seed is unfit for human consumption and, therefore, market fee levy is impermissible.Question No. IV41. The object of legislature was to notify only those seeds which are different from the produce itself. 42. Thus all the questions are answered as above. 43. The argument of the counsel for the first respondent is well merited and founded on sound legal principles and on practical and factual aspects of the matter.
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24. We have already reproduced Section 2(a) and Section 17(iii) of the Adhiniyam. Section 17(iii) of the Adhiniyam provides for imposition of market fee on the transactions of sale of specified agricultural produce in the market area at such rates notified by the State. As already noticed, Wheat is specified in the Schedule at S. No.1 under the Heading Cereals. A perusal of the Schedule would show that wherever seeds have been intended to be notified, it has been specifically mentioned as Seeds. In case of Wheat, however, Schedule does not provide or notify seed of wheat and thus the seeds of wheat are not specified in the Schedule and are thus not covered by the definition of Agricultural produce. We have also referred to the Objects and Reasons for enacting the Seeds Act, 1966 and the Seeds Rules, Rules, 1968. As already seen, Seeds Rule 1968 have made detailed provisions of production, processing and certification of seeds under the Seed Certification Agency. The Central Government in order to exempt the movement of seeds and in exercise of its powers under the Essential Commodities Act, has enacted Foodgrains Movement Restriction (Exemption of Seeds) Orders, 1970 and the Seeds Control Order, 1983. The seeds are also exempted from Sales Tax under an exemption dated 19.8.1970 issued under Section 4(1)(a) of the Act (Annexure CA 3).25. We have already referred to the essential conditions incorporated in the Certificate of Registration. One of the essential conditions incorporated in the Certificate of Registration is that the certificate holder shall not carry on any business such as dealing in food grains, other than the business of sale of certified seeds. Under the terms and conditions of such certificate, the first respondent is not carrying any other business except the business of certified seeds and it is also not in dispute that the respondent does not hold any other licence for dealing in food grains includingHigh Court has, in our view, correctly appreciated and accepted the contention of the respondent-Company and has rightly relied upon the judgment of this Court in State of Rajasthan vs. Agricultural Input Dealers Association (Supra).In our view, the High Court has correctly applied the above judgment. This Court held that no market fee could be levied by the State of Rajasthan on seeds on the ground that a seed was distinct from foodgrains inasmuch as they were not fit for human consumption. The ratio decidendi of the above decision is squarely applicable to this case wherein the appellant seeks to give a wide connotation to the words in the Schedule. In our opinion, that giving a wide interpretation is not possible and as Wheat Seed is not included in the Schedule, the Mandi Samiti is not allowed to levy a market fee on purchase. As the Mandi Samiti plays no role in the trade of the respondents seeds, it may not be allowed to levy the market fee. It is also not in dispute that the Breeder Seeds are allocated by the Ministry of Agriculture or by the Universities to the various seed producing agencies and companies who multiply the breeder seeds into foundations seeds.There is no nexus whether the seed has been chemically treated or not and the levy of market fees. Since the seed is a separate commodity from grain, the same is not covered under Schedule I of the Adhiniyam and as such no market fee is leviable over the sale and/ or purchase of the same.36. We are, thereafter, of the view that the seeds are not specified agricultural produce under the provisions of the Act and, therefore, the business of purchase and sale of seeds under the supervision of Seed Certification Agency established under the Act is not a business of sale and purchase of specified agricultural produce and as such the first respondent is not required to pay the market fee or to take out a licence.37. We are also of the view that the respondents have grossly erred in ignoring the law settled by this Court in the case of State of Rajasthan vs. Rajasthan Agricultural Input dealers Association (supra) under Article 141 of the Constitution in demanding market fee on seeds. Since the processing of wheat resulting in loss of its basic characteristics of being cereal,, it cannot be subjected to levy as agricultural produce since the purchase by the respondent is for the purpose of growing seeds, no levy is permissible and, therefore, market fee cannot be imposed on seeds which are unfit for human consumption.Question No. I38. Thus, the true scope and ambit of Section 2(a) and 17(iii) (b) of the Act has been explained in paras supra.Question No. II39. The appellant has no authority to levy market fee on the purchase of wheat by the seed processing unit. This question is answered in the negative.Question No. III40. Wheat seed converted into certified seed is unfit for human consumption and, therefore, market fee levy is impermissible.Question No. IV41. The object of legislature was to notify only those seeds which are different from the produce itself.The argument of the counsel for the first respondent is well merited and founded on sound legal principles and on practical and factual aspects of the
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Rev. Father W. Proost & Others Vs. The State of Bihar & Others | (1) cannot be cut down by introducing in it considerations on which Article 29 (1) is based. The latter article is a general protection which is given to minorities to conserve their language, script or culture. The former is a special right to minorities to establish educational institutions of their choice. This choice is not limited to institution seeking to conserve language, script or culture and the choice is not taken away if the minority community having established an educational institution of its choice also admits members of other communities. That is a circumstance irrelevant for the application of Article 30 (1) since no such limitation is expressed and none can be implied. The two articles create two separate rights, although it is possible that they may meet in a given case.9. The learned Attorney-General refers to two cases of this Court which he thinks support his contention. What we find in them does not bear out this submission. On the other hand, they point the other way. In re the Kerala Education Bill, 1957, 1959 SCR 995 =(AIR 1958 SC 956 ), Articles 29 and 30 were considered in relation to an Education Bill referred by the President of India to the Supreme Court for its advisory opinion. The points that arose in the case were different but certain passages from the opinion were brought to our notice. The Court after pointing out that Articles 29 and 30 are grouped together under the heading "Cultural and Educational Rights" points out that the articles are intended to confer certain fundamental rights on certain sections of the community which constitute minority communities. Explaining clause (1) of Article 29 this Court observed at p. 1047 (of SCR)= (at p. 976 of AIR):"............... It is obvious that a minority community can effectively conserve its language, script or culture by and through educational institutions and, therefore, the right to establish and maintain educational institutions of its choice is a necessary concomitant to the right to conserve its distinctive language, script or culture and that is what is conferred on all minorities by Article 30 (1) which has hereinbefore been quoted in full . . . . . . ".10. The learned Attorney-General argues that here the two articles were read together. But the other side relies on two other passages. The first is at page 1050. The argument on behalf of the State there appears to be that there are three conditions before the protection and privileges of Article 30 (1) may be claimed-"(1) there must be a minority community, (2) one or more of the members of that community should, after the commencement of the Constitution, seek to exercise the right to establish an educational institution of his or their choice, and (3) the educational institution must be established for the members of his or their own community."This Court repelled the contention that the protection and privilege of Art. 30(1) extended only to the educational institutions established after the Constitution. Dealing with Article 29 (1) this Court observed:"The real import of Article 29 (2) and Article 30 (1) seems to us to be that they clearly contemplate a minority institution with a sprinkling of outsiders admitted into it. By admitting a non-member into it the minority institution does not shed its character and cease to be a minority institution. Indeed the object of conservation of the distinct language, script and culture of a minority may be better served by propagating the same amongst non-members of the particular minority community. In our opinion, it is not possible to read this condition into Article 30 (1) of the Constitution."11. While one side considers that the observation suggests that the two articles go together, the other side contends that mixing of the other communities with the minority community in the benefits of educational institution shows that the real test is not that there must be an institution purely of one community. The learned Attorney-General places great importance on the word sprinkling and says that the minority must found the institution for itself and not for others and the aim or object must be to conserve distinct language, script or culture. In our opinion both sides are attempting to read far too much into these observations. They are not intended to be read in every context. On the other hand, in Rev. Sidhrajbhai Sabbai v. State of Bombay, 1963-3 SCR 837 at p. 850 = (AIR 1963 SC 540 at p. 545), there is the following passage:"............ The fundamental freedom is to establish and to administer educational institutions: it is a right to establish and administer what are in truth educational institutions, institutions which cater to the educational needs of the citizens, or sections thereof."The emphasis here was rightly placed not upon the needs of the community exclusively but upon the educational needs of the citizens or sections thereof. In other words, the suggestion that Article 30(1) is limited to the needs of a single community or that only its own culture, language or script need to be provided for is not the right approach. Here too if we may say so, the point decided was different but the observation does make Article 30 (1) much wider than the learned AttorneyGeneral would have us hold.12. In our judgment the language of Art 30 (1) is wide and must receive full meaning. We are dealing with protection of minorities and attempts to whittle down the protection cannot be allowed.We need not enlarge the protection but we may not reduce a protection naturally flowing from the words. Here the protection clearly flows from the words and there is nothing on the basis of which aid can be sought from Article 29 (1).13. We are, therefore, quite clear that St. Xaviers College was founded by a Catholic Minority Community based on religion and that this educational institution has the protection of Article 30 (1) of the Constitution. For the same reason it is exempted under Section 48-B of the Act. | 1[ds]In our opinion, this argument cannot be accepted.In our opinion the width of Article 30 (1) cannot be cut down by introducing in it considerations on which Article 29 (1) is based. The latter article is a general protection which is given to minorities to conserve their language, script or culture. The former is a special right to minorities to establish educational institutions of their choice. This choice is not limited to institution seeking to conserve language, script or culture and the choice is not taken away if the minority community having established an educational institution of its choice also admits members of other communities. That is a circumstance irrelevant for the application of Article 30 (1) since no such limitation is expressed and none can be implied. The two articles create two separate rights, although it is possible that they may meet in a givenemphasis here was rightly placed not upon the needs of the community exclusively but upon the educational needs of the citizens or sections thereof. In other words, the suggestion that Article 30(1) is limited to the needs of a single community or that only its own culture, language or script need to be provided for is not the right approach. Here too if we may say so, the point decided was different but the observation does make Article 30 (1) much wider than the learned AttorneyGeneral would have us hold.In our judgment the language of Art 30 (1) is wide and must receive full meaning. We are dealing with protection of minorities and attempts to whittle down the protection cannot be allowed.We need not enlarge the protection but we may not reduce a protection naturally flowing from the words. Here the protection clearly flows from the words and there is nothing on the basis of which aid can be sought from Article 29 (1).13. We are, therefore, quite clear that St. Xaviers College was founded by a Catholic Minority Community based on religion and that this educational institution has the protection of Article 30 (1) of the Constitution. For the same reason it is exempted under Section 48-B of the Act. | 1 | 3,606 | 402 | ### Instruction:
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(1) cannot be cut down by introducing in it considerations on which Article 29 (1) is based. The latter article is a general protection which is given to minorities to conserve their language, script or culture. The former is a special right to minorities to establish educational institutions of their choice. This choice is not limited to institution seeking to conserve language, script or culture and the choice is not taken away if the minority community having established an educational institution of its choice also admits members of other communities. That is a circumstance irrelevant for the application of Article 30 (1) since no such limitation is expressed and none can be implied. The two articles create two separate rights, although it is possible that they may meet in a given case.9. The learned Attorney-General refers to two cases of this Court which he thinks support his contention. What we find in them does not bear out this submission. On the other hand, they point the other way. In re the Kerala Education Bill, 1957, 1959 SCR 995 =(AIR 1958 SC 956 ), Articles 29 and 30 were considered in relation to an Education Bill referred by the President of India to the Supreme Court for its advisory opinion. The points that arose in the case were different but certain passages from the opinion were brought to our notice. The Court after pointing out that Articles 29 and 30 are grouped together under the heading "Cultural and Educational Rights" points out that the articles are intended to confer certain fundamental rights on certain sections of the community which constitute minority communities. Explaining clause (1) of Article 29 this Court observed at p. 1047 (of SCR)= (at p. 976 of AIR):"............... It is obvious that a minority community can effectively conserve its language, script or culture by and through educational institutions and, therefore, the right to establish and maintain educational institutions of its choice is a necessary concomitant to the right to conserve its distinctive language, script or culture and that is what is conferred on all minorities by Article 30 (1) which has hereinbefore been quoted in full . . . . . . ".10. The learned Attorney-General argues that here the two articles were read together. But the other side relies on two other passages. The first is at page 1050. The argument on behalf of the State there appears to be that there are three conditions before the protection and privileges of Article 30 (1) may be claimed-"(1) there must be a minority community, (2) one or more of the members of that community should, after the commencement of the Constitution, seek to exercise the right to establish an educational institution of his or their choice, and (3) the educational institution must be established for the members of his or their own community."This Court repelled the contention that the protection and privilege of Art. 30(1) extended only to the educational institutions established after the Constitution. Dealing with Article 29 (1) this Court observed:"The real import of Article 29 (2) and Article 30 (1) seems to us to be that they clearly contemplate a minority institution with a sprinkling of outsiders admitted into it. By admitting a non-member into it the minority institution does not shed its character and cease to be a minority institution. Indeed the object of conservation of the distinct language, script and culture of a minority may be better served by propagating the same amongst non-members of the particular minority community. In our opinion, it is not possible to read this condition into Article 30 (1) of the Constitution."11. While one side considers that the observation suggests that the two articles go together, the other side contends that mixing of the other communities with the minority community in the benefits of educational institution shows that the real test is not that there must be an institution purely of one community. The learned Attorney-General places great importance on the word sprinkling and says that the minority must found the institution for itself and not for others and the aim or object must be to conserve distinct language, script or culture. In our opinion both sides are attempting to read far too much into these observations. They are not intended to be read in every context. On the other hand, in Rev. Sidhrajbhai Sabbai v. State of Bombay, 1963-3 SCR 837 at p. 850 = (AIR 1963 SC 540 at p. 545), there is the following passage:"............ The fundamental freedom is to establish and to administer educational institutions: it is a right to establish and administer what are in truth educational institutions, institutions which cater to the educational needs of the citizens, or sections thereof."The emphasis here was rightly placed not upon the needs of the community exclusively but upon the educational needs of the citizens or sections thereof. In other words, the suggestion that Article 30(1) is limited to the needs of a single community or that only its own culture, language or script need to be provided for is not the right approach. Here too if we may say so, the point decided was different but the observation does make Article 30 (1) much wider than the learned AttorneyGeneral would have us hold.12. In our judgment the language of Art 30 (1) is wide and must receive full meaning. We are dealing with protection of minorities and attempts to whittle down the protection cannot be allowed.We need not enlarge the protection but we may not reduce a protection naturally flowing from the words. Here the protection clearly flows from the words and there is nothing on the basis of which aid can be sought from Article 29 (1).13. We are, therefore, quite clear that St. Xaviers College was founded by a Catholic Minority Community based on religion and that this educational institution has the protection of Article 30 (1) of the Constitution. For the same reason it is exempted under Section 48-B of the Act.
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In our opinion, this argument cannot be accepted.In our opinion the width of Article 30 (1) cannot be cut down by introducing in it considerations on which Article 29 (1) is based. The latter article is a general protection which is given to minorities to conserve their language, script or culture. The former is a special right to minorities to establish educational institutions of their choice. This choice is not limited to institution seeking to conserve language, script or culture and the choice is not taken away if the minority community having established an educational institution of its choice also admits members of other communities. That is a circumstance irrelevant for the application of Article 30 (1) since no such limitation is expressed and none can be implied. The two articles create two separate rights, although it is possible that they may meet in a givenemphasis here was rightly placed not upon the needs of the community exclusively but upon the educational needs of the citizens or sections thereof. In other words, the suggestion that Article 30(1) is limited to the needs of a single community or that only its own culture, language or script need to be provided for is not the right approach. Here too if we may say so, the point decided was different but the observation does make Article 30 (1) much wider than the learned AttorneyGeneral would have us hold.In our judgment the language of Art 30 (1) is wide and must receive full meaning. We are dealing with protection of minorities and attempts to whittle down the protection cannot be allowed.We need not enlarge the protection but we may not reduce a protection naturally flowing from the words. Here the protection clearly flows from the words and there is nothing on the basis of which aid can be sought from Article 29 (1).13. We are, therefore, quite clear that St. Xaviers College was founded by a Catholic Minority Community based on religion and that this educational institution has the protection of Article 30 (1) of the Constitution. For the same reason it is exempted under Section 48-B of the Act.
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The Management of TNSTC (Coimbatore) Ltd Vs. M. Chandrasekaran | to ascertain whether prima facie case is made out for grant or non-grant of approval to the order of punishment. In doing so, the Commissioner could not substitute his own judgment but must only consider whether the view taken by the Disciplinary Authority is a possible view on the evidence on record. 10. In the present case, the sole reason which weighed with the Commissioner was that no independent witness was produced - not even a single passenger of the bus was examined by the Department. The decision relied by the appellant squarely deals even with this reasoning. It has been held that, in the case of State of Haryana & Others Vs. Rattan Singh (1977) 2 SCC 491 )the Court held that mere non-examination of passenger does not render the finding of guilt and punishment imposed by the Disciplinary Authority invalid. Similar view has been taken in the case of Divisional Controller KSRTC (NWKRTC) vs. A.T. Mane (2005) 3 SCC 254 ). Both these decisions have been noticed in the reported decision relied by the appellant. The burden to prove that the accident happened due to some other cause than his own negligence, is on the employee, as expounded in the case of Thakur Singh vs. State of Punjab (2003) 9 SCC 208 )referred to in the reported decision. In the reported case relied by the appellant, it has been noted as under: “34. ……………………………In the instant case the Presiding Officer, Industrial Tribunal as also the learned Single Judge and the Division Bench of the High Court misdirected themselves in law insofar as they failed to pose unto themselves correct questions. It is now well-settled that a quasi-judicial authority must pose unto itself a correct question so as to arrive at a correct finding of fact. A wrong question posed leads to a wrong answer. In this case, furthermore, the misdirection in law committed by the Industrial Tribunal was apparent insofar as it did not apply the principle of Res ipsa loquitur which was relevant for the purpose of this case and, thus, failed to take into consideration a relevant factor and furthermore took into consideration an irrelevant fact not germane for determining the issue, namely, the passengers of the bus were mandatorily required to be examined. The Industrial Tribunal further failed to apply the correct standard of proof in relation to a domestic enquiry, which in “preponderance of probability” and applied the standard of proof required for a criminal trial. A case for judicial review was, thus, clearly made out.” 11. Applying the principle stated in Cholan Roadways Ltd. (Supra), what needs to be considered is about the probative value of the evidence showing the extensive damage caused to the bus as well as motorcar; the fatal injuries caused to several persons resulting in death; and that the nature of impact raises an inference that the bus was driven by the respondent rashly or negligently. The material relied by the Department during the enquiry supported the fact that the respondent was driving the vehicle at the relevant time and because of the high speed of his vehicle the impact was so severe that the two vehicles were extensively damaged and the passengers travelling in the vehicle suffered fatal injuries resulting in death of five persons on the spot and four persons in the hospital besides the injuries to nine persons. These facts stood established from the material relied by the Department, as a result of which the doctrine of Res ipsa loquitur came into play and the burden shifted on the respondent who was in control of the bus to establish that the accident did not happen on account of any negligence on his part. Neither the Commissioner nor the High Court considered the matter on that basis nor posed unto themselves the correct question which was relevant for deciding the application under Section 33(2)(b). On the other hand, the order of punishment dated 13th October, 2003, ex facie, reveals that the report of the Enquiry Officer referring to the relevant material established the factum and the nature of accident warranting an inference that the respondent had driven the bus rashly and negligently. Further, the observation in the unreported decision of the Division Bench of the same High Court was not relevant for deciding the application under Section 33(2)(b). Significantly, the order of punishment also adverts to the past history of the respondent indicative of respondent having faced similar departmental action on thirty two occasions, including for having committed minor as well as fatal accidents while performing his duty. 12. In our opinion, the Commissioner exceeded his jurisdiction in reappreciating the evidence adduced before the Enquiry Officer and in substituting his own judgment to that of the Disciplinary Authority. It was not a case of no legal evidence produced during the enquiry by the Department, in relation to the charges framed against the respondent. Whether the decision of the Disciplinary Authority of dismissing the respondent is just and proper, could be assailed by the respondent in appropriate proceedings. Considering the fact that there was adequate material produced in the Departmental enquiry evidencing that fatal accident was caused by the respondent while driving the vehicle on duty, the burden to prove that the accident happened due to some other cause than his own negligence was on the respondent. The doctrine of Res ipsa loquitur squarely applies to the fact situation in the present case.13. Ordinarily, we would have remitted the matter back to the Commissioner for consideration afresh, but as the matter is pending for a long time and as we are satisfied that in the fact situation of the present case approval to the order of punishment passed by the appellant against the respondent should have been granted, we allow the application under Section 33(2)(b) preferred by the appellant but with liberty to the respondent to take recourse to appropriate remedy as may be available in law to question the said order of dismissal dated 13th October, 2003. | 1[ds]12. In our opinion, the Commissioner exceeded his jurisdiction in reappreciating the evidence adduced before the Enquiry Officer and in substituting his own judgment to that of the Disciplinary Authority. It was not a case of no legal evidence produced during the enquiry by the Department, in relation to the charges framed against the respondent. Whether the decision of the Disciplinary Authority of dismissing the respondent is just and proper, could be assailed by the respondent in appropriate proceedings. Considering the fact that there was adequate material produced in the Departmental enquiry evidencing that fatal accident was caused by the respondent while driving the vehicle on duty, the burden to prove that the accident happened due to some other cause than his own negligence was on the respondent. The doctrine of Res ipsa loquitur squarely applies to the fact situation in the present case.13. Ordinarily, we would have remitted the matter back to the Commissioner for consideration afresh, but as the matter is pending for a long time and as we are satisfied that in the fact situation of the present case approval to the order of punishment passed by the appellant against the respondent should have been granted, we allow the application under Section 33(2)(b) preferred by the appellant but with liberty to the respondent to take recourse to appropriate remedy as may be available in law to question the said order of dismissal dated 13th October, 2003. | 1 | 3,627 | 264 | ### 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 ascertain whether prima facie case is made out for grant or non-grant of approval to the order of punishment. In doing so, the Commissioner could not substitute his own judgment but must only consider whether the view taken by the Disciplinary Authority is a possible view on the evidence on record. 10. In the present case, the sole reason which weighed with the Commissioner was that no independent witness was produced - not even a single passenger of the bus was examined by the Department. The decision relied by the appellant squarely deals even with this reasoning. It has been held that, in the case of State of Haryana & Others Vs. Rattan Singh (1977) 2 SCC 491 )the Court held that mere non-examination of passenger does not render the finding of guilt and punishment imposed by the Disciplinary Authority invalid. Similar view has been taken in the case of Divisional Controller KSRTC (NWKRTC) vs. A.T. Mane (2005) 3 SCC 254 ). Both these decisions have been noticed in the reported decision relied by the appellant. The burden to prove that the accident happened due to some other cause than his own negligence, is on the employee, as expounded in the case of Thakur Singh vs. State of Punjab (2003) 9 SCC 208 )referred to in the reported decision. In the reported case relied by the appellant, it has been noted as under: “34. ……………………………In the instant case the Presiding Officer, Industrial Tribunal as also the learned Single Judge and the Division Bench of the High Court misdirected themselves in law insofar as they failed to pose unto themselves correct questions. It is now well-settled that a quasi-judicial authority must pose unto itself a correct question so as to arrive at a correct finding of fact. A wrong question posed leads to a wrong answer. In this case, furthermore, the misdirection in law committed by the Industrial Tribunal was apparent insofar as it did not apply the principle of Res ipsa loquitur which was relevant for the purpose of this case and, thus, failed to take into consideration a relevant factor and furthermore took into consideration an irrelevant fact not germane for determining the issue, namely, the passengers of the bus were mandatorily required to be examined. The Industrial Tribunal further failed to apply the correct standard of proof in relation to a domestic enquiry, which in “preponderance of probability” and applied the standard of proof required for a criminal trial. A case for judicial review was, thus, clearly made out.” 11. Applying the principle stated in Cholan Roadways Ltd. (Supra), what needs to be considered is about the probative value of the evidence showing the extensive damage caused to the bus as well as motorcar; the fatal injuries caused to several persons resulting in death; and that the nature of impact raises an inference that the bus was driven by the respondent rashly or negligently. The material relied by the Department during the enquiry supported the fact that the respondent was driving the vehicle at the relevant time and because of the high speed of his vehicle the impact was so severe that the two vehicles were extensively damaged and the passengers travelling in the vehicle suffered fatal injuries resulting in death of five persons on the spot and four persons in the hospital besides the injuries to nine persons. These facts stood established from the material relied by the Department, as a result of which the doctrine of Res ipsa loquitur came into play and the burden shifted on the respondent who was in control of the bus to establish that the accident did not happen on account of any negligence on his part. Neither the Commissioner nor the High Court considered the matter on that basis nor posed unto themselves the correct question which was relevant for deciding the application under Section 33(2)(b). On the other hand, the order of punishment dated 13th October, 2003, ex facie, reveals that the report of the Enquiry Officer referring to the relevant material established the factum and the nature of accident warranting an inference that the respondent had driven the bus rashly and negligently. Further, the observation in the unreported decision of the Division Bench of the same High Court was not relevant for deciding the application under Section 33(2)(b). Significantly, the order of punishment also adverts to the past history of the respondent indicative of respondent having faced similar departmental action on thirty two occasions, including for having committed minor as well as fatal accidents while performing his duty. 12. In our opinion, the Commissioner exceeded his jurisdiction in reappreciating the evidence adduced before the Enquiry Officer and in substituting his own judgment to that of the Disciplinary Authority. It was not a case of no legal evidence produced during the enquiry by the Department, in relation to the charges framed against the respondent. Whether the decision of the Disciplinary Authority of dismissing the respondent is just and proper, could be assailed by the respondent in appropriate proceedings. Considering the fact that there was adequate material produced in the Departmental enquiry evidencing that fatal accident was caused by the respondent while driving the vehicle on duty, the burden to prove that the accident happened due to some other cause than his own negligence was on the respondent. The doctrine of Res ipsa loquitur squarely applies to the fact situation in the present case.13. Ordinarily, we would have remitted the matter back to the Commissioner for consideration afresh, but as the matter is pending for a long time and as we are satisfied that in the fact situation of the present case approval to the order of punishment passed by the appellant against the respondent should have been granted, we allow the application under Section 33(2)(b) preferred by the appellant but with liberty to the respondent to take recourse to appropriate remedy as may be available in law to question the said order of dismissal dated 13th October, 2003.
### Response:
1
### Explanation:
12. In our opinion, the Commissioner exceeded his jurisdiction in reappreciating the evidence adduced before the Enquiry Officer and in substituting his own judgment to that of the Disciplinary Authority. It was not a case of no legal evidence produced during the enquiry by the Department, in relation to the charges framed against the respondent. Whether the decision of the Disciplinary Authority of dismissing the respondent is just and proper, could be assailed by the respondent in appropriate proceedings. Considering the fact that there was adequate material produced in the Departmental enquiry evidencing that fatal accident was caused by the respondent while driving the vehicle on duty, the burden to prove that the accident happened due to some other cause than his own negligence was on the respondent. The doctrine of Res ipsa loquitur squarely applies to the fact situation in the present case.13. Ordinarily, we would have remitted the matter back to the Commissioner for consideration afresh, but as the matter is pending for a long time and as we are satisfied that in the fact situation of the present case approval to the order of punishment passed by the appellant against the respondent should have been granted, we allow the application under Section 33(2)(b) preferred by the appellant but with liberty to the respondent to take recourse to appropriate remedy as may be available in law to question the said order of dismissal dated 13th October, 2003.
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RAMASAMY (PURCHASER) Vs. VENKATACHALAPATHI (DECREE HOLDER) | R. BANUMATHI, J.1. Leave granted.2. This appeal arises out of the Judgment and order dated 09.11.2016 passed by the High Court of Judicature at Madras in CRP (NPD) No. 3727 of 2015, in and by which, the learned Single Judge affirmed the order of the Executing Court, finding the appellant guilty of Contempt of Court for the wilful disobedience of the order of injunction dated 09.12.2004 passed in the suit for specific performance, being OS No. 162 of 2004 filed by the first respondent.3. The second respondent, Deivathal, had entered into an Agreement to Sell dated 08.06.2004 in favour of the first respondent. The first respondent filed the suit for specific performance, being OS No. 162 of 2004 and in the said suit, interim injunction was granted on 09.12.2004 restraining the second respondent – Deivathal not to alienate the suit property. The said suit for specific performance was decreed on 24.08.2006. Even when the said suit for specific performance was pending, it is alleged that in violation of the interim injunction dated 09.12.2004, the second respondent – Deivathal had executed the sale deed dated 17.06.2005 in favour of the appellant who is none other than the father-in- law of the second respondent. After the suit for specific performance was decreed, the first respondent has also got the sale deed dated 07.12.2006 executed through the process of the Court. The appellant herein filed the suit for injunction, being OS No. 29 of 2007, which came to be dismissed. The first respondent also filed another suit, being OS No. 61 of 2010 to declare the sale deed dated 17.05.2005 in favour of the appellant as null and void and the said suit, being OS No. 61 of 2010 was also decreed. The first appeal preferred by the appellant also came to be dismissed on 24.02.2017. It is stated that the second appeal is pending before the High Court.4. In the present appeal, we are concerned only with the alleged disobedience of the interim order dated 09.12.2004, disobedience of which the appellant was found guilty. In the Execution Petition filed by the first respondent under Order XXI Rule 32(5) and Order XXXIX Rule 2(a) of the Code of Civil Procedure and the Executing Court held that there was willful disobedience of the order of the interim injunction dated 09.12.2004 and found both, the appellant as well as the second respondent, guilty of Contempt of Court.5. A Revision was filed by the second respondent, being CRP (NPD) No. 1593 of 2014 challenging the order of the Executing Court and the said revision was allowed on 11.11.2014. While allowing the said revision filed by the second respondent – vendor, the learned Single Judge observed that the materials available before the court did not indicate that the second respondent (first defendant) is guilty of any violation, whereas in the revision filed by the appellant in CRP (NPD) No. 3727 of 2015 dated 09.11.2016, the learned Single Judge took a different view by observing that the sale deed was executed during the pendency of the order of injunction and, therefore, the Executing Court rightly found the appellant guilty of Contempt of Court for the disobedience of the order dated 09.12.2004.6. We have heard the learned counsel for the parties and perused the impugned order and the other materials on record. Violation of the order of injunction is a serious matter and unless there is a clear evidence that the party has wilfully disobeyed the order of the court, the party cannot be punished for disobedience and sent to imprisonment. Though the appellant is said to be the father-in-law of the second respondent, no materials were placed before the court to show that he had the knowledge of the interim order dated 09.12.2004. However, the fact remains that the second respondent and the appellant are the daughter-in-law and the father-in-law. The second respondent-vendor having been found not guilty of contempt of court in the revision (being CRP (NPD) No. 1593 of 2014), the appellant cannot be placed in a worse situation than his vendor. It is also pertinent to point out that the first respondent – Decreeholder also had got the sale deed executed on 07.12.2006. The first respondent has also said to have taken the possession of the property in dispute. | 1[ds]6. We have heard the learned counsel for the parties and perused the impugned order and the other materials on record. Violation of the order of injunction is a serious matter and unless there is a clear evidence that the party has wilfully disobeyed the order of the court, the party cannot be punished for disobedience and sent to imprisonment. Though the appellant is said to be the father-in-law of the second respondent, no materials were placed before the court to show that he had the knowledge of the interim order dated 09.12.2004. However, the fact remains that the second respondent and the appellant are the daughter-in-law and the father-in-law. The second respondent-vendor having been found not guilty of contempt of court in the revision (being CRP (NPD) No. 1593 of 2014), the appellant cannot be placed in a worse situation than his vendor. It is also pertinent to point out that the first respondent – Decreeholder also had got the sale deed executed on 07.12.2006. The first respondent has also said to have taken the possession of the property in dispute. | 1 | 796 | 205 | ### 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:
R. BANUMATHI, J.1. Leave granted.2. This appeal arises out of the Judgment and order dated 09.11.2016 passed by the High Court of Judicature at Madras in CRP (NPD) No. 3727 of 2015, in and by which, the learned Single Judge affirmed the order of the Executing Court, finding the appellant guilty of Contempt of Court for the wilful disobedience of the order of injunction dated 09.12.2004 passed in the suit for specific performance, being OS No. 162 of 2004 filed by the first respondent.3. The second respondent, Deivathal, had entered into an Agreement to Sell dated 08.06.2004 in favour of the first respondent. The first respondent filed the suit for specific performance, being OS No. 162 of 2004 and in the said suit, interim injunction was granted on 09.12.2004 restraining the second respondent – Deivathal not to alienate the suit property. The said suit for specific performance was decreed on 24.08.2006. Even when the said suit for specific performance was pending, it is alleged that in violation of the interim injunction dated 09.12.2004, the second respondent – Deivathal had executed the sale deed dated 17.06.2005 in favour of the appellant who is none other than the father-in- law of the second respondent. After the suit for specific performance was decreed, the first respondent has also got the sale deed dated 07.12.2006 executed through the process of the Court. The appellant herein filed the suit for injunction, being OS No. 29 of 2007, which came to be dismissed. The first respondent also filed another suit, being OS No. 61 of 2010 to declare the sale deed dated 17.05.2005 in favour of the appellant as null and void and the said suit, being OS No. 61 of 2010 was also decreed. The first appeal preferred by the appellant also came to be dismissed on 24.02.2017. It is stated that the second appeal is pending before the High Court.4. In the present appeal, we are concerned only with the alleged disobedience of the interim order dated 09.12.2004, disobedience of which the appellant was found guilty. In the Execution Petition filed by the first respondent under Order XXI Rule 32(5) and Order XXXIX Rule 2(a) of the Code of Civil Procedure and the Executing Court held that there was willful disobedience of the order of the interim injunction dated 09.12.2004 and found both, the appellant as well as the second respondent, guilty of Contempt of Court.5. A Revision was filed by the second respondent, being CRP (NPD) No. 1593 of 2014 challenging the order of the Executing Court and the said revision was allowed on 11.11.2014. While allowing the said revision filed by the second respondent – vendor, the learned Single Judge observed that the materials available before the court did not indicate that the second respondent (first defendant) is guilty of any violation, whereas in the revision filed by the appellant in CRP (NPD) No. 3727 of 2015 dated 09.11.2016, the learned Single Judge took a different view by observing that the sale deed was executed during the pendency of the order of injunction and, therefore, the Executing Court rightly found the appellant guilty of Contempt of Court for the disobedience of the order dated 09.12.2004.6. We have heard the learned counsel for the parties and perused the impugned order and the other materials on record. Violation of the order of injunction is a serious matter and unless there is a clear evidence that the party has wilfully disobeyed the order of the court, the party cannot be punished for disobedience and sent to imprisonment. Though the appellant is said to be the father-in-law of the second respondent, no materials were placed before the court to show that he had the knowledge of the interim order dated 09.12.2004. However, the fact remains that the second respondent and the appellant are the daughter-in-law and the father-in-law. The second respondent-vendor having been found not guilty of contempt of court in the revision (being CRP (NPD) No. 1593 of 2014), the appellant cannot be placed in a worse situation than his vendor. It is also pertinent to point out that the first respondent – Decreeholder also had got the sale deed executed on 07.12.2006. The first respondent has also said to have taken the possession of the property in dispute.
### Response:
1
### Explanation:
6. We have heard the learned counsel for the parties and perused the impugned order and the other materials on record. Violation of the order of injunction is a serious matter and unless there is a clear evidence that the party has wilfully disobeyed the order of the court, the party cannot be punished for disobedience and sent to imprisonment. Though the appellant is said to be the father-in-law of the second respondent, no materials were placed before the court to show that he had the knowledge of the interim order dated 09.12.2004. However, the fact remains that the second respondent and the appellant are the daughter-in-law and the father-in-law. The second respondent-vendor having been found not guilty of contempt of court in the revision (being CRP (NPD) No. 1593 of 2014), the appellant cannot be placed in a worse situation than his vendor. It is also pertinent to point out that the first respondent – Decreeholder also had got the sale deed executed on 07.12.2006. The first respondent has also said to have taken the possession of the property in dispute.
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Regional Director, Employees' State Insurance Corporation and Another Vs. Enfield India Limited | These two civil appeals arise out of a common judgment of the High Court of Judicature at Madras allowing two writ petitions filed by the respondent Company. The contention of the respondent Company before the High Court was that the appellant Corporation is not entitled to direct the respondent Company to remit the employers and employees contributions to the extent to which they covered the amounts of incentive bonus paid to the workmen by the said company during the relevant periods. Two different orders of the appellant authority directing the company to pay these amounts resulted in the aforesaid two writ petitions. A Division Bench of the High Court took the view that the company was not liable to remit either the employers or employees contributions so far as the incentive bonus paid to the employees was concerned as according to the High Court it did not form part of wages. The aforesaid judgment of the High Court was rendered on October 13, 1982. By grant of special leave to appeal, the present appeals are filed by the appellant Corporation. 2. Now, in the meantime, this Court has finally resolved this controversy. The two decisions of this Court which have a direct bearing on the controversy between the parties may be noted. In Harihar Polyfibres v. Regional Director ESI Corpn. (1984-II-LLJ-475) a Bench of two learned Judges of this Court speaking through O. Chinnappa Reddy, J. held that "wages" as defined by Section 2(22) of the Employees State Insurance Act, 1948 (hereinafter to be referred to as "the Act") would include amongst others incentive allowances paid to the workmen. A. N. Sen, J. in his supplementary judgment also took the same view. There is a later decision of this Court in the case of Modella Woollens Ltd. V. ESI Corpn., which had ruled that production bonus is also covered by the term "wages" as defined by Section 2(22) of the said Act. | 1[ds]2. Now, in the meantime, this Court has finally resolved this controversy. The two decisions of this Court which have a direct bearing on the controversy between the parties may be noted. In Harihar Polyfibres v. Regional Director ESI Corpn.a Bench of two learned Judges of this Court speaking through O. Chinnappa Reddy, J. held that "wages" as defined by Section 2(22) of the Employees State Insurance Act, 1948 (hereinafter to be referred to as "the Act") would include amongst others incentive allowances paid to the workmen. A. N. Sen, J. in his supplementary judgment also took the same view. There is a later decision of this Court in the case of Modella Woollens Ltd. V. ESI Corpn., which had ruled that production bonus is also covered by the term "wages" as defined by Section 2(22) of the said Act. | 1 | 359 | 170 | ### 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:
These two civil appeals arise out of a common judgment of the High Court of Judicature at Madras allowing two writ petitions filed by the respondent Company. The contention of the respondent Company before the High Court was that the appellant Corporation is not entitled to direct the respondent Company to remit the employers and employees contributions to the extent to which they covered the amounts of incentive bonus paid to the workmen by the said company during the relevant periods. Two different orders of the appellant authority directing the company to pay these amounts resulted in the aforesaid two writ petitions. A Division Bench of the High Court took the view that the company was not liable to remit either the employers or employees contributions so far as the incentive bonus paid to the employees was concerned as according to the High Court it did not form part of wages. The aforesaid judgment of the High Court was rendered on October 13, 1982. By grant of special leave to appeal, the present appeals are filed by the appellant Corporation. 2. Now, in the meantime, this Court has finally resolved this controversy. The two decisions of this Court which have a direct bearing on the controversy between the parties may be noted. In Harihar Polyfibres v. Regional Director ESI Corpn. (1984-II-LLJ-475) a Bench of two learned Judges of this Court speaking through O. Chinnappa Reddy, J. held that "wages" as defined by Section 2(22) of the Employees State Insurance Act, 1948 (hereinafter to be referred to as "the Act") would include amongst others incentive allowances paid to the workmen. A. N. Sen, J. in his supplementary judgment also took the same view. There is a later decision of this Court in the case of Modella Woollens Ltd. V. ESI Corpn., which had ruled that production bonus is also covered by the term "wages" as defined by Section 2(22) of the said Act.
### Response:
1
### Explanation:
2. Now, in the meantime, this Court has finally resolved this controversy. The two decisions of this Court which have a direct bearing on the controversy between the parties may be noted. In Harihar Polyfibres v. Regional Director ESI Corpn.a Bench of two learned Judges of this Court speaking through O. Chinnappa Reddy, J. held that "wages" as defined by Section 2(22) of the Employees State Insurance Act, 1948 (hereinafter to be referred to as "the Act") would include amongst others incentive allowances paid to the workmen. A. N. Sen, J. in his supplementary judgment also took the same view. There is a later decision of this Court in the case of Modella Woollens Ltd. V. ESI Corpn., which had ruled that production bonus is also covered by the term "wages" as defined by Section 2(22) of the said Act.
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INDUSIND BANK LIMITED AND ANOTHER Vs. SIMARJIT SINGH | for payment of Rs. 1,39,335/-. Thereupon, it is accepted, the respondent had paid Rs. 1,04,200/- on 24th March 2008, Rs. 35,150/- on 6th May 2008 and Rs. 36,000/- on 31st May 2008. Accordingly, Rs. 8,19,300/- was paid by 31st May 2008, while as per the instalment schedule, the respondent was required to pay only Rs. 8,08,000/- up to June 2008. 2. Despite the respondent not being in arrears, the truck of the respondent with loaded cargo of timber, going from Gandhi Dham, Gujarat to Srinagar was stopped near village Bhasaur by about 10- 12 persons on 3rd July 2008. They then forcibly took physical possession of the truck and the timber. 3. Thereupon, the respondent preferred Consumer Complaint No. 344 of 2008 alleging deficiency in service before the District Consumer Disputes Redressal Forum, Sangrur, which was dismissed vide order dated 04th December 2008. Thereafter, Appeal No. 11 of 2009 before the State Consumer Disputes Redressal Commission, Punjab (Hereinafter referred to as SCDRC) was treated/converted into original complaint bearing Special Consumer Complaint No. 344 of 2008, which complaint was allowed vide order dated 26th October 2018, with the following directions: i) to pay Rs 10,80,000/- being the value of the truck, in question, as on the date of repossession, along with interest at the rate of 9% per annum from the date of repossession of the vehicle, in question i.e. 05.07.2008 till realization; ii) to pay Rs 20,00,000/- being the value of the timber loaded in the truck, in question, to the complainant, along with interest at the rate of 9% per annum from the date of repossession of the vehicle, in question i.e. 05.07.2008 till realization; (iii) to pay compensation at the rate of Rs 3,000/- per month for the loss of livelihood suffered by the complainant for want of plying the truck, in question, for all these years, along with interest at the rate of 9% per annum from the date of repossession i.e. 05.07.2008 till realization; and (iv) to pay Rs 40,000/- as litigation expenses. 4. The appellant Bank and its Chairman moved Revision Petition bearing No. 187 of 2019 before the National Consumer Disputes Redressal Commission (Hereinafter referred as NCDRC), which has been dismissed vide the order dated 20th July 2021, now assailed before us. 5. The Bank had taken the stand before the SCDRC and the NCDRC that the respondent had voluntarily surrendered the truck. The foras for good reasons have rejected this plea. It was evident that the respondent had deposited Rs. 4,69,323/- as margin money and had already paid more amount than required under the payment schedule. The assertion of the Bank that the respondent had taken another loan of Rs. 8,77,000/- vide Loan Account No. JL 004701H and had defaulted in payment of the instalments therein was held to be inconsequential for the present case as the two transactions were unrelated and different. 6. This Court, while issuing notice vide order dated 17th September 2021, has recorded that the document(s) relied on by the Bank evidencing alleged surrender of the truck by the respondent was held to be fabricated by the SCDRC. This being a finding of fact, would not be interfered by this Court at this stage. The notice was limited to the direction assessing Rs. 20,00,000 as the value of the timber loaded on the truck. 7. The orders dated 26th October 2018 of the SCDRC and 20th July 2021 of the NCDRC are silent on the value of timber and have merely gone by the figure mentioned by the respondent in the complaint. The respondent did not enclose and rely upon any document to support the valuation of timber and the claim for Rs. 20,00,000. 8. The respondents stand before us is that the documents relating to the valuation of the consignment were in the truck itself. Even if this is to be accepted, the respondent could have placed on record some documents or confirmation from the consignor or the consignee to show the value of the timber. It was stated before us that the truck union, of which the respondent was a member, had settled the matter with the consignor/consignee. However, these papers were also not placed on record. 9. On the question of value of the timber, the appellant Bank has gleaned our attention to Annexures P/12 to P/18. These documents, it is stated, are related to the consignment in question: the consignment note dated 26th June 2008 issued by New Bikaner Punjab Haryana Roadlines showing the value of timber (P/12); retail invoice issued by M/s. Green Gold Timbers Private Limited in favour of Fayaz Timber Traders, Srinagar (P/13); surrender letter dated 07th July 2008 executed by the respondent in favour of the Bank (P/14); letter dated 23rd July 2008 from New Bikaner Punjab Haryana Road Lines, Gandhi Dham, stating that the timber in truck No. PB 13Q 8731 had been shifted and loaded on another truck by their representative Mr. Balwant Singh (P/15); transit slip dated 30th June 2008 issued by Excise and Taxation Department, Punjab (P/16); confirmation by Fayaz Timber Traders that they had received imported timber from Green Gold Timber Private Limited sent vide G.R. No. 793 dated 26th June 2008 issued by New Bikaner Punjab Haryana Road Lines, Gandhi Dham (P/17); and letter dated 24th January 2019 of Green Gold Timbers Private Limited confirming having received payment for the timber from Fayaz Timber Traders (P/18). Relying on these documents, the appellants have highlighted that the value of the timber loaded in the truck was Rs. 4,13,710/- and it was delivered to the consignee. 10. It appears that the above documents were neither filed before the SCDRC nor the NCDRC. Usually, we would not have taken these documents on record, albeit we are inclined to pass an order of remit to the SCDRC as we find that neither of the Commissions examined and went into the question of valuation of the consignment. The orders of the SCDRC and the NCDRC to this extent are flawed. | 1[ds]9. On the question of value of the timber, the appellant Bank has gleaned our attention to Annexures P/12 to P/18. These documents, it is stated, are related to the consignment in question: the consignment note dated 26th June 2008 issued by New Bikaner Punjab Haryana Roadlines showing the value of timber (P/12); retail invoice issued by M/s. Green Gold Timbers Private Limited in favour of Fayaz Timber Traders, Srinagar (P/13); surrender letter dated 07th July 2008 executed by the respondent in favour of the Bank (P/14); letter dated 23rd July 2008 from New Bikaner Punjab Haryana Road Lines, Gandhi Dham, stating that the timber in truck No. PB 13Q 8731 had been shifted and loaded on another truck by their representative Mr. Balwant Singh (P/15); transit slip dated 30th June 2008 issued by Excise and Taxation Department, Punjab (P/16); confirmation by Fayaz Timber Traders that they had received imported timber from Green Gold Timber Private Limited sent vide G.R. No. 793 dated 26th June 2008 issued by New Bikaner Punjab Haryana Road Lines, Gandhi Dham (P/17); and letter dated 24th January 2019 of Green Gold Timbers Private Limited confirming having received payment for the timber from Fayaz Timber Traders (P/18). Relying on these documents, the appellants have highlighted that the value of the timber loaded in the truck was Rs. 4,13,710/- and it was delivered to the consignee.10. It appears that the above documents were neither filed before the SCDRC nor the NCDRC. Usually, we would not have taken these documents on record, albeit we are inclined to pass an order of remit to the SCDRC as we find that neither of the Commissions examined and went into the question of valuation of the consignment. The orders of the SCDRC and the NCDRC to this extent are flawed. | 1 | 1,228 | 347 | ### 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:
for payment of Rs. 1,39,335/-. Thereupon, it is accepted, the respondent had paid Rs. 1,04,200/- on 24th March 2008, Rs. 35,150/- on 6th May 2008 and Rs. 36,000/- on 31st May 2008. Accordingly, Rs. 8,19,300/- was paid by 31st May 2008, while as per the instalment schedule, the respondent was required to pay only Rs. 8,08,000/- up to June 2008. 2. Despite the respondent not being in arrears, the truck of the respondent with loaded cargo of timber, going from Gandhi Dham, Gujarat to Srinagar was stopped near village Bhasaur by about 10- 12 persons on 3rd July 2008. They then forcibly took physical possession of the truck and the timber. 3. Thereupon, the respondent preferred Consumer Complaint No. 344 of 2008 alleging deficiency in service before the District Consumer Disputes Redressal Forum, Sangrur, which was dismissed vide order dated 04th December 2008. Thereafter, Appeal No. 11 of 2009 before the State Consumer Disputes Redressal Commission, Punjab (Hereinafter referred to as SCDRC) was treated/converted into original complaint bearing Special Consumer Complaint No. 344 of 2008, which complaint was allowed vide order dated 26th October 2018, with the following directions: i) to pay Rs 10,80,000/- being the value of the truck, in question, as on the date of repossession, along with interest at the rate of 9% per annum from the date of repossession of the vehicle, in question i.e. 05.07.2008 till realization; ii) to pay Rs 20,00,000/- being the value of the timber loaded in the truck, in question, to the complainant, along with interest at the rate of 9% per annum from the date of repossession of the vehicle, in question i.e. 05.07.2008 till realization; (iii) to pay compensation at the rate of Rs 3,000/- per month for the loss of livelihood suffered by the complainant for want of plying the truck, in question, for all these years, along with interest at the rate of 9% per annum from the date of repossession i.e. 05.07.2008 till realization; and (iv) to pay Rs 40,000/- as litigation expenses. 4. The appellant Bank and its Chairman moved Revision Petition bearing No. 187 of 2019 before the National Consumer Disputes Redressal Commission (Hereinafter referred as NCDRC), which has been dismissed vide the order dated 20th July 2021, now assailed before us. 5. The Bank had taken the stand before the SCDRC and the NCDRC that the respondent had voluntarily surrendered the truck. The foras for good reasons have rejected this plea. It was evident that the respondent had deposited Rs. 4,69,323/- as margin money and had already paid more amount than required under the payment schedule. The assertion of the Bank that the respondent had taken another loan of Rs. 8,77,000/- vide Loan Account No. JL 004701H and had defaulted in payment of the instalments therein was held to be inconsequential for the present case as the two transactions were unrelated and different. 6. This Court, while issuing notice vide order dated 17th September 2021, has recorded that the document(s) relied on by the Bank evidencing alleged surrender of the truck by the respondent was held to be fabricated by the SCDRC. This being a finding of fact, would not be interfered by this Court at this stage. The notice was limited to the direction assessing Rs. 20,00,000 as the value of the timber loaded on the truck. 7. The orders dated 26th October 2018 of the SCDRC and 20th July 2021 of the NCDRC are silent on the value of timber and have merely gone by the figure mentioned by the respondent in the complaint. The respondent did not enclose and rely upon any document to support the valuation of timber and the claim for Rs. 20,00,000. 8. The respondents stand before us is that the documents relating to the valuation of the consignment were in the truck itself. Even if this is to be accepted, the respondent could have placed on record some documents or confirmation from the consignor or the consignee to show the value of the timber. It was stated before us that the truck union, of which the respondent was a member, had settled the matter with the consignor/consignee. However, these papers were also not placed on record. 9. On the question of value of the timber, the appellant Bank has gleaned our attention to Annexures P/12 to P/18. These documents, it is stated, are related to the consignment in question: the consignment note dated 26th June 2008 issued by New Bikaner Punjab Haryana Roadlines showing the value of timber (P/12); retail invoice issued by M/s. Green Gold Timbers Private Limited in favour of Fayaz Timber Traders, Srinagar (P/13); surrender letter dated 07th July 2008 executed by the respondent in favour of the Bank (P/14); letter dated 23rd July 2008 from New Bikaner Punjab Haryana Road Lines, Gandhi Dham, stating that the timber in truck No. PB 13Q 8731 had been shifted and loaded on another truck by their representative Mr. Balwant Singh (P/15); transit slip dated 30th June 2008 issued by Excise and Taxation Department, Punjab (P/16); confirmation by Fayaz Timber Traders that they had received imported timber from Green Gold Timber Private Limited sent vide G.R. No. 793 dated 26th June 2008 issued by New Bikaner Punjab Haryana Road Lines, Gandhi Dham (P/17); and letter dated 24th January 2019 of Green Gold Timbers Private Limited confirming having received payment for the timber from Fayaz Timber Traders (P/18). Relying on these documents, the appellants have highlighted that the value of the timber loaded in the truck was Rs. 4,13,710/- and it was delivered to the consignee. 10. It appears that the above documents were neither filed before the SCDRC nor the NCDRC. Usually, we would not have taken these documents on record, albeit we are inclined to pass an order of remit to the SCDRC as we find that neither of the Commissions examined and went into the question of valuation of the consignment. The orders of the SCDRC and the NCDRC to this extent are flawed.
### Response:
1
### Explanation:
9. On the question of value of the timber, the appellant Bank has gleaned our attention to Annexures P/12 to P/18. These documents, it is stated, are related to the consignment in question: the consignment note dated 26th June 2008 issued by New Bikaner Punjab Haryana Roadlines showing the value of timber (P/12); retail invoice issued by M/s. Green Gold Timbers Private Limited in favour of Fayaz Timber Traders, Srinagar (P/13); surrender letter dated 07th July 2008 executed by the respondent in favour of the Bank (P/14); letter dated 23rd July 2008 from New Bikaner Punjab Haryana Road Lines, Gandhi Dham, stating that the timber in truck No. PB 13Q 8731 had been shifted and loaded on another truck by their representative Mr. Balwant Singh (P/15); transit slip dated 30th June 2008 issued by Excise and Taxation Department, Punjab (P/16); confirmation by Fayaz Timber Traders that they had received imported timber from Green Gold Timber Private Limited sent vide G.R. No. 793 dated 26th June 2008 issued by New Bikaner Punjab Haryana Road Lines, Gandhi Dham (P/17); and letter dated 24th January 2019 of Green Gold Timbers Private Limited confirming having received payment for the timber from Fayaz Timber Traders (P/18). Relying on these documents, the appellants have highlighted that the value of the timber loaded in the truck was Rs. 4,13,710/- and it was delivered to the consignee.10. It appears that the above documents were neither filed before the SCDRC nor the NCDRC. Usually, we would not have taken these documents on record, albeit we are inclined to pass an order of remit to the SCDRC as we find that neither of the Commissions examined and went into the question of valuation of the consignment. The orders of the SCDRC and the NCDRC to this extent are flawed.
|
Ghuran Yadav Vs. State of Bihar | Uchit Paswan (P.W. 5), when produced as a witness, stated that he knew nothing about this case. He was confronted with Ex. 1/Gha but he said that he could not read what was written there. He categorically denied the suggestion by the prosecuting counsel that he had been won over by the accused and that he was concealing the true facts. Even this witness was not declared hostile and was not cross-examined by the prosecuting counsel. In cross-examination by the defence counsel he stated that he had put his signature on Ex. 1/Gha and had written whatever he was told by the Sub-Inspector of Excise to write. It is obvious that these two witnesses do not support P.W. 6. Siya Sharan Roy (P.W. 4), A.S.I. Excise (Special) is witness on whom the learned Sessions Judge relied for convicting the appellant. We may, therefore, now appropriately turn to his testimony. According to him on October 9, 1963 at about 8 a.m. he, along with other excise officers, a Magistrate and members of armed police searched the appellants house in village Mathar. In the course of the search six bags of Nepali Ganja were recovered from a room facing south which, according to him, was the residence of the appellant. Rama Shankar Singh, Sub-Inspector of Excise, prepared the search list in the presence of this witness whereon he also put his signatures (at Ex. 1/Ga). He admits that the accused was not present at the house at the time of the search. This is all that he has stated in his examination-in-chief and obviously he does not state as to who had identified the house which was searched as belonging to the appellant. In cross-examination again we do not find anything about the person who identified the house to be that of the appellant. P.W. 7, Jamuna Prasad Singh, Excise peon was also cross-examined about the ownership of the house searched and to quote his own words he learnt from Ram Krishan Yadav and Uchit Paswan about the location of the house of Churan". According to this witness, it is noteworthy, the appellants house was found locked before it searched. The matter was, however, not pursued by the counsel for the defence nor was any question put by the prosecuting counsel in re-examination to clarify this matter. In the circumstances the question whether the house which was searched was locked and if so how the raid party entered it for carrying out the search, must, therefore, remain unanswered on the existing record. The last witness whose testimony requires to be noticed is the Magistrate A. A. Akbari (P.W. 8). According to him the raid party left for village Mathar on the night of October 8, 1963, under orders of the District Magistrate and it reached that village at 6 or 6.30 a.m. on the following morning. The order of the District Magistrate, it may be pointed out, was not produced in Court and is not on the record. As the party approached village Mathar some villagers were seen running away with bags on their heads. They were chased and arrested and contraband Ganja was found in these bags. This witness also claims to be present at the time the appellants house was searched and according to him, the search was effected "after observing the formalities of search". He has not specifically stated about the formalities except that "independent witnesses were present at the time of the search" without naming them. On every vital point his memory has failed him. He even admits that he had not entered the room from which the bags were recovered. In regard to the identity of the house all that he could say was that he had learnt from the villagers, whose names he could not remember, that the room searched belonged to Churan Yadav (appellant). As to why he has stated that the room and not the house belonged to the appellant is not clear. He does not even know if there is a Gram Panchayat or a Chowkidar in the village. It is thus obvious that his evidence is of little assistance on the question of ownership of the house searched as he has no personal knowledge and the names of the persons on whose information he depends for his testimony have not been disclosed. This witness has not stated if he had ordered the search of the house in question nor has he stated the reasons why it was considered necessary to search the house. Indeed, he neither remembers having signed the search list nor if he had put his seal anywhere. His evidence does not prove that the search was carried out with the requisite care and caution. The search, if any, which is said to have led to the recovery of the six bags in question appears to us on the existing record to have been effected in a manner which does not inspire confidence. But we need say nothing more on this point because the absence of evidence of ownership of the house is enough to determine the fate of the prosecution case. 5. On going through the record and examining the evidence which we have just discussed we are clear that there is no legal evidence on the record on which we can sustain the conclusions of the courts below that it was the appellants house which was searched. 6. Normally this Court, of course, does not examine for appraisal under Article 136 of the Constitution the evidence on questions of fact decided by the courts below. But when there are reasons to think that the conclusions may be based on no evidence, then this Court is not only entitled but it has an obligation in the larger interests of justice to examine the evidence to see if there is legal evidence on which those conclusions can be sustained. In this case we find that there is no legal evidence on which the courts below could base their conclusions. 7. | 1[ds]5. On going through the record and examining the evidence which we have just discussed we are clear that there is no legal evidence on the record on which we can sustain the conclusions of the courts below that it was the appellants house which was searched6. Normally this Court, of course, does not examine for appraisal under Article 136 of the Constitution the evidence on questions of fact decided by the courts below. But when there are reasons to think that the conclusions may be based on no evidence, then this Court is not only entitled but it has an obligation in the larger interests of justice to examine the evidence to see if there is legal evidence on which those conclusions can be sustained. In this case we find that there is no legal evidence on which the courts below could base their conclusionsn again we do not find anything about the person who identified the house to be that of the appellant. P.W. 7, Jamuna Prasad Singh, Excise peon was alsod about the ownership of the house searched and to quote his own words he learnt from Ram Krishan Yadav and Uchit Paswan about the location of the house of Churan". According to this witness, it is noteworthy, the appellants house was found locked before it searched. The matter was, however, not pursued by the counsel for the defence nor was any question put by the prosecuting counsel inn to clarify this matterIn the circumstances the question whether the house which was searched was locked and if so how the raid party entered it for carrying out the search, must, therefore, remain unanswered on the existing record. The last witness whose testimony requires to be noticed is the Magistrate A. A. Akbari (P.W. 8). According to him the raid party left for village Mathar on the night of October 8, 1963, under orders of the District Magistrate and it reached that village at 6 or 6.30 a.m. on the following morning. The order of the District Magistrate, it may be pointed out, was not produced in Court and is not on the record. As the party approached village Mathar some villagers were seen running away with bags on their heads. They were chased and arrested and contraband Ganja was found in these bags. This witness also claims to be present at the time the appellants house was searched and according to him, the search was effected "after observing the formalities of search". He has not specifically stated about the formalities except that "independent witnesses were present at the time of the search" without naming them. On every vital point his memory has failed him. He even admits that he had not entered the room from which the bags were recovered. In regard to the identity of the house all that he could say was that he had learnt from the villagers, whose names he could not remember, that the room searched belonged to Churan Yadav (appellant). As to why he has stated that the room and not the house belonged to the appellant is not clear. He does not even know if there is a Gram Panchayat or a Chowkidar in the village. It is thus obvious that his evidence is of little assistance on the question of ownership of the house searched as he has no personal knowledge and the names of the persons on whose information he depends for his testimony have not been disclosed. This witness has not stated if he had ordered the search of the house in question nor has he stated the reasons why it was considered necessary to search the house. Indeed, he neither remembers having signed the search list nor if he had put his seal anywhere. His evidence does not prove that the search was carried out with the requisite care and caution. The search, if any, which is said to have led to the recovery of the six bags in question appears to us on the existing record to have been effected in a manner which does not inspire confidence. But we need say nothing more on this point because the absence of evidence of ownership of the house is enough to determine the fate of the prosecution case. | 1 | 2,910 | 776 | ### 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:
Uchit Paswan (P.W. 5), when produced as a witness, stated that he knew nothing about this case. He was confronted with Ex. 1/Gha but he said that he could not read what was written there. He categorically denied the suggestion by the prosecuting counsel that he had been won over by the accused and that he was concealing the true facts. Even this witness was not declared hostile and was not cross-examined by the prosecuting counsel. In cross-examination by the defence counsel he stated that he had put his signature on Ex. 1/Gha and had written whatever he was told by the Sub-Inspector of Excise to write. It is obvious that these two witnesses do not support P.W. 6. Siya Sharan Roy (P.W. 4), A.S.I. Excise (Special) is witness on whom the learned Sessions Judge relied for convicting the appellant. We may, therefore, now appropriately turn to his testimony. According to him on October 9, 1963 at about 8 a.m. he, along with other excise officers, a Magistrate and members of armed police searched the appellants house in village Mathar. In the course of the search six bags of Nepali Ganja were recovered from a room facing south which, according to him, was the residence of the appellant. Rama Shankar Singh, Sub-Inspector of Excise, prepared the search list in the presence of this witness whereon he also put his signatures (at Ex. 1/Ga). He admits that the accused was not present at the house at the time of the search. This is all that he has stated in his examination-in-chief and obviously he does not state as to who had identified the house which was searched as belonging to the appellant. In cross-examination again we do not find anything about the person who identified the house to be that of the appellant. P.W. 7, Jamuna Prasad Singh, Excise peon was also cross-examined about the ownership of the house searched and to quote his own words he learnt from Ram Krishan Yadav and Uchit Paswan about the location of the house of Churan". According to this witness, it is noteworthy, the appellants house was found locked before it searched. The matter was, however, not pursued by the counsel for the defence nor was any question put by the prosecuting counsel in re-examination to clarify this matter. In the circumstances the question whether the house which was searched was locked and if so how the raid party entered it for carrying out the search, must, therefore, remain unanswered on the existing record. The last witness whose testimony requires to be noticed is the Magistrate A. A. Akbari (P.W. 8). According to him the raid party left for village Mathar on the night of October 8, 1963, under orders of the District Magistrate and it reached that village at 6 or 6.30 a.m. on the following morning. The order of the District Magistrate, it may be pointed out, was not produced in Court and is not on the record. As the party approached village Mathar some villagers were seen running away with bags on their heads. They were chased and arrested and contraband Ganja was found in these bags. This witness also claims to be present at the time the appellants house was searched and according to him, the search was effected "after observing the formalities of search". He has not specifically stated about the formalities except that "independent witnesses were present at the time of the search" without naming them. On every vital point his memory has failed him. He even admits that he had not entered the room from which the bags were recovered. In regard to the identity of the house all that he could say was that he had learnt from the villagers, whose names he could not remember, that the room searched belonged to Churan Yadav (appellant). As to why he has stated that the room and not the house belonged to the appellant is not clear. He does not even know if there is a Gram Panchayat or a Chowkidar in the village. It is thus obvious that his evidence is of little assistance on the question of ownership of the house searched as he has no personal knowledge and the names of the persons on whose information he depends for his testimony have not been disclosed. This witness has not stated if he had ordered the search of the house in question nor has he stated the reasons why it was considered necessary to search the house. Indeed, he neither remembers having signed the search list nor if he had put his seal anywhere. His evidence does not prove that the search was carried out with the requisite care and caution. The search, if any, which is said to have led to the recovery of the six bags in question appears to us on the existing record to have been effected in a manner which does not inspire confidence. But we need say nothing more on this point because the absence of evidence of ownership of the house is enough to determine the fate of the prosecution case. 5. On going through the record and examining the evidence which we have just discussed we are clear that there is no legal evidence on the record on which we can sustain the conclusions of the courts below that it was the appellants house which was searched. 6. Normally this Court, of course, does not examine for appraisal under Article 136 of the Constitution the evidence on questions of fact decided by the courts below. But when there are reasons to think that the conclusions may be based on no evidence, then this Court is not only entitled but it has an obligation in the larger interests of justice to examine the evidence to see if there is legal evidence on which those conclusions can be sustained. In this case we find that there is no legal evidence on which the courts below could base their conclusions. 7.
### Response:
1
### Explanation:
5. On going through the record and examining the evidence which we have just discussed we are clear that there is no legal evidence on the record on which we can sustain the conclusions of the courts below that it was the appellants house which was searched6. Normally this Court, of course, does not examine for appraisal under Article 136 of the Constitution the evidence on questions of fact decided by the courts below. But when there are reasons to think that the conclusions may be based on no evidence, then this Court is not only entitled but it has an obligation in the larger interests of justice to examine the evidence to see if there is legal evidence on which those conclusions can be sustained. In this case we find that there is no legal evidence on which the courts below could base their conclusionsn again we do not find anything about the person who identified the house to be that of the appellant. P.W. 7, Jamuna Prasad Singh, Excise peon was alsod about the ownership of the house searched and to quote his own words he learnt from Ram Krishan Yadav and Uchit Paswan about the location of the house of Churan". According to this witness, it is noteworthy, the appellants house was found locked before it searched. The matter was, however, not pursued by the counsel for the defence nor was any question put by the prosecuting counsel inn to clarify this matterIn the circumstances the question whether the house which was searched was locked and if so how the raid party entered it for carrying out the search, must, therefore, remain unanswered on the existing record. The last witness whose testimony requires to be noticed is the Magistrate A. A. Akbari (P.W. 8). According to him the raid party left for village Mathar on the night of October 8, 1963, under orders of the District Magistrate and it reached that village at 6 or 6.30 a.m. on the following morning. The order of the District Magistrate, it may be pointed out, was not produced in Court and is not on the record. As the party approached village Mathar some villagers were seen running away with bags on their heads. They were chased and arrested and contraband Ganja was found in these bags. This witness also claims to be present at the time the appellants house was searched and according to him, the search was effected "after observing the formalities of search". He has not specifically stated about the formalities except that "independent witnesses were present at the time of the search" without naming them. On every vital point his memory has failed him. He even admits that he had not entered the room from which the bags were recovered. In regard to the identity of the house all that he could say was that he had learnt from the villagers, whose names he could not remember, that the room searched belonged to Churan Yadav (appellant). As to why he has stated that the room and not the house belonged to the appellant is not clear. He does not even know if there is a Gram Panchayat or a Chowkidar in the village. It is thus obvious that his evidence is of little assistance on the question of ownership of the house searched as he has no personal knowledge and the names of the persons on whose information he depends for his testimony have not been disclosed. This witness has not stated if he had ordered the search of the house in question nor has he stated the reasons why it was considered necessary to search the house. Indeed, he neither remembers having signed the search list nor if he had put his seal anywhere. His evidence does not prove that the search was carried out with the requisite care and caution. The search, if any, which is said to have led to the recovery of the six bags in question appears to us on the existing record to have been effected in a manner which does not inspire confidence. But we need say nothing more on this point because the absence of evidence of ownership of the house is enough to determine the fate of the prosecution case.
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Krishika Lulla Vs. Shyam Vithalrao Devkatta | author of “A passage to India” E.M. Forster filed a suit against the defendants for alleged infringement of copyright in the title of the book for adopting as a title the name of the defendants guide written for students, as “E M Forster, A Passage to India, Everyman’s guide”. The Court reviewed the law on the subject ((i) Macmillan v. Suresh Chander Deb, ILR 17 Cat 951, (ii ) Longman v. Winchester, (1809)16 Ves 269,(iii) Dicks v. Yates, (1881) 18 Ch D 79), and observed that there was no copyright in respect of title vide page 231 of the report. Eventually the Court held :- “As we have earlier affirmed, there is no copyright in the title and purchasers, whether of the original work or of the guide, are most unlikely to be illiterate, or unacquainted with English. It will be perfectly clear to them, from the words enclosed in brakets as a sub-title, that they were acquiring, not the original work, but a “guide for University students…………” 16. The same question arose in Kanungo Media (P) Ltd. v RGV Film Factory & Ors. reported in (2007) ILR 1 Delhi 1122 where the Court declined injunction against the defendant for using the brand name and title “Nishabd” alleging similar to the film of the plaintiff therein. The learned Judge A.K. Sikri, J. (as His Lordship then was) referred to decisions of the American Courts and observed that the position is the same as under the copyright law in India:- “12……… What, therefore, follows is that if a junior user uses the senior user’s literary title as the title of a work that by itself does not infringe the copyright of a senior user’s work since there is no copyright infringement merely from the identity or similarity of the titles alone.” The Court then considered the question of protection of title as a trademark with which we are not concerned in this case. 17. Subsequently, in R. Radha Krishnan v. Mr. A.R. Murugadoss & Ors. reported in 2013-5-L.W. 429, the Madras High Court followed the decision of the Delhi High Court in the Kanungo Media Case and rejected an injunction for restraining the defendant from using the title of the plaintiff’s film ‘Raja Rani’. The Madras High Court considered various other decisions and held that the words ‘Raja Rani’ are words of common parlance which denote the king or the queen and cannot be protected under the law of copyright. The two judgments of the Madras High Court cited above and the judgment of the Delhi High Court in our view, lay down the correct law. 18. The learned counsel for the appellants relied on passages from Copinger and Skone James on Copyright Sixteenth Edition by Kevin Garnett, M.A, Gillian Davies, D.L., Ph.D. and Gwilym Harbottle, B.A. (Oxon) at page 70:- “Names and titles as literary works.In the same vein is the reluctance of English courts to confer copyright protection on titles of newspapers, magazines, books and the like. In relation to books in particular, the title normally forms part of a copyright work consisting of the book as a whole and the issue here may be whether the copying of the title amounts to the taking of a substantial part of the whole work. General statements can nevertheless be found in non-copyright cases to the effect that there is no property in a name or title standing alone unless it is the subject of goodwill or a registered trade mark.” The learned authors observed:- “The courts, have, however, been careful not to rule out the possibility of such protection in appropriate circumstances, although in practice no case has ever gone this far. The only concrete example which has been given judicially is the now archaic practice of the title-page of a book consisting of an extended passage of text.” In relation to copyright in characters and titles the learned authors observed:- “It is very difficult to protect titles of films by an action for infringement of copyright due to the requirements of originality and that a substantial part of a work be copied. If a well-known title of a film is used without authority, the owner’s remedy is likely to lie in passing off. Protection by registration as a trade mark may be available provided the title in sufficiently distinctive.” 19. We are thus, of the view, that no copyright subsists in the title of a literary work and a plaintiff or a complainant is not entitled to relief on such basis except in an action for passing off or in respect of a registered trademark comprising such titles. This does not mean that in no case can a title be a proper subject of protection against being copied as held in Dicks v Yates where Jessel M.R said “there might be copyright in a title as for instance a whole page of title or something of that kind requiring invention” or as observed by Copinger (supra).20. In the present case we find that there is no copyright in the title “Desi Boys” and thus no question of its infringement arises. The prosecution based on allegations of infringement of copyright in such a title is untenable.21. The learned counsel for the respondents indeed contended that the applications under Section 482 were rightly dismissed since these facts alleged by the appellants depend on evidence at the trial. It is not possible to agree since it has throughout been the case of the respondent No.1-Devkatta that he is claiming copyright only in the title of the synopsis of his story “Desi Boys” and he has not even seen the film of the appellants nor does he know the story. The learned counsel for the respondent was however right in his submissions that it is not necessary to furnish all the ingredients of the complaint and failing which the complaint is liable to be dismissed on that ground. It is not necessary to consider the decisions cited by the respondents on this point. | 1[ds]19. We are thus, of the view, that no copyright subsists in the title of a literary work and a plaintiff or a complainant is not entitled to relief on such basis except in an action for passing off or in respect of a registered trademark comprising such titles. This does not mean that in no case can a title be a proper subject of protection against being copied as held in Dicks v Yates where Jessel M.R saidmight be copyright in a title as for instance a whole page of title or something of that kind requiringor as observed by Copinger (supra).20. In the present case we find that there is no copyright in the titlend thus no question of its infringement arises. The prosecution based on allegations of infringement of copyright in such a title is untenable.21. The learned counsel for the respondents indeed contended that the applications under Section 482 were rightly dismissed since these facts alleged by the appellants depend on evidence at the trial. It is not possible to agree since it has throughout been the case of the respondent No.1-Devkatta that he is claiming copyright only in the title of the synopsis of his storynd he has not even seen the film of the appellants nor does he know the story. The learned counsel for the respondent was however right in his submissions that it is not necessary to furnish all the ingredients of the complaint and failing which the complaint is liable to be dismissed on that ground. It is not necessary to consider the decisions cited by the respondents on this point. | 1 | 3,698 | 288 | ### 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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author of “A passage to India” E.M. Forster filed a suit against the defendants for alleged infringement of copyright in the title of the book for adopting as a title the name of the defendants guide written for students, as “E M Forster, A Passage to India, Everyman’s guide”. The Court reviewed the law on the subject ((i) Macmillan v. Suresh Chander Deb, ILR 17 Cat 951, (ii ) Longman v. Winchester, (1809)16 Ves 269,(iii) Dicks v. Yates, (1881) 18 Ch D 79), and observed that there was no copyright in respect of title vide page 231 of the report. Eventually the Court held :- “As we have earlier affirmed, there is no copyright in the title and purchasers, whether of the original work or of the guide, are most unlikely to be illiterate, or unacquainted with English. It will be perfectly clear to them, from the words enclosed in brakets as a sub-title, that they were acquiring, not the original work, but a “guide for University students…………” 16. The same question arose in Kanungo Media (P) Ltd. v RGV Film Factory & Ors. reported in (2007) ILR 1 Delhi 1122 where the Court declined injunction against the defendant for using the brand name and title “Nishabd” alleging similar to the film of the plaintiff therein. The learned Judge A.K. Sikri, J. (as His Lordship then was) referred to decisions of the American Courts and observed that the position is the same as under the copyright law in India:- “12……… What, therefore, follows is that if a junior user uses the senior user’s literary title as the title of a work that by itself does not infringe the copyright of a senior user’s work since there is no copyright infringement merely from the identity or similarity of the titles alone.” The Court then considered the question of protection of title as a trademark with which we are not concerned in this case. 17. Subsequently, in R. Radha Krishnan v. Mr. A.R. Murugadoss & Ors. reported in 2013-5-L.W. 429, the Madras High Court followed the decision of the Delhi High Court in the Kanungo Media Case and rejected an injunction for restraining the defendant from using the title of the plaintiff’s film ‘Raja Rani’. The Madras High Court considered various other decisions and held that the words ‘Raja Rani’ are words of common parlance which denote the king or the queen and cannot be protected under the law of copyright. The two judgments of the Madras High Court cited above and the judgment of the Delhi High Court in our view, lay down the correct law. 18. The learned counsel for the appellants relied on passages from Copinger and Skone James on Copyright Sixteenth Edition by Kevin Garnett, M.A, Gillian Davies, D.L., Ph.D. and Gwilym Harbottle, B.A. (Oxon) at page 70:- “Names and titles as literary works.In the same vein is the reluctance of English courts to confer copyright protection on titles of newspapers, magazines, books and the like. In relation to books in particular, the title normally forms part of a copyright work consisting of the book as a whole and the issue here may be whether the copying of the title amounts to the taking of a substantial part of the whole work. General statements can nevertheless be found in non-copyright cases to the effect that there is no property in a name or title standing alone unless it is the subject of goodwill or a registered trade mark.” The learned authors observed:- “The courts, have, however, been careful not to rule out the possibility of such protection in appropriate circumstances, although in practice no case has ever gone this far. The only concrete example which has been given judicially is the now archaic practice of the title-page of a book consisting of an extended passage of text.” In relation to copyright in characters and titles the learned authors observed:- “It is very difficult to protect titles of films by an action for infringement of copyright due to the requirements of originality and that a substantial part of a work be copied. If a well-known title of a film is used without authority, the owner’s remedy is likely to lie in passing off. Protection by registration as a trade mark may be available provided the title in sufficiently distinctive.” 19. We are thus, of the view, that no copyright subsists in the title of a literary work and a plaintiff or a complainant is not entitled to relief on such basis except in an action for passing off or in respect of a registered trademark comprising such titles. This does not mean that in no case can a title be a proper subject of protection against being copied as held in Dicks v Yates where Jessel M.R said “there might be copyright in a title as for instance a whole page of title or something of that kind requiring invention” or as observed by Copinger (supra).20. In the present case we find that there is no copyright in the title “Desi Boys” and thus no question of its infringement arises. The prosecution based on allegations of infringement of copyright in such a title is untenable.21. The learned counsel for the respondents indeed contended that the applications under Section 482 were rightly dismissed since these facts alleged by the appellants depend on evidence at the trial. It is not possible to agree since it has throughout been the case of the respondent No.1-Devkatta that he is claiming copyright only in the title of the synopsis of his story “Desi Boys” and he has not even seen the film of the appellants nor does he know the story. The learned counsel for the respondent was however right in his submissions that it is not necessary to furnish all the ingredients of the complaint and failing which the complaint is liable to be dismissed on that ground. It is not necessary to consider the decisions cited by the respondents on this point.
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19. We are thus, of the view, that no copyright subsists in the title of a literary work and a plaintiff or a complainant is not entitled to relief on such basis except in an action for passing off or in respect of a registered trademark comprising such titles. This does not mean that in no case can a title be a proper subject of protection against being copied as held in Dicks v Yates where Jessel M.R saidmight be copyright in a title as for instance a whole page of title or something of that kind requiringor as observed by Copinger (supra).20. In the present case we find that there is no copyright in the titlend thus no question of its infringement arises. The prosecution based on allegations of infringement of copyright in such a title is untenable.21. The learned counsel for the respondents indeed contended that the applications under Section 482 were rightly dismissed since these facts alleged by the appellants depend on evidence at the trial. It is not possible to agree since it has throughout been the case of the respondent No.1-Devkatta that he is claiming copyright only in the title of the synopsis of his storynd he has not even seen the film of the appellants nor does he know the story. The learned counsel for the respondent was however right in his submissions that it is not necessary to furnish all the ingredients of the complaint and failing which the complaint is liable to be dismissed on that ground. It is not necessary to consider the decisions cited by the respondents on this point.
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Rajasthan State Road Transport Corporation, Jaipur Vs. Smt. Poonam Pahwa and others | 20, neither order XXXIII nor Section 25 of Civil Procedure Code have been made expressly applicable. Dr. Dhavan has taken pains in referring to a number of decisions of various High Courts where the underlying principles of Civil Procedure Code have been made applicable in the proceedings before the statutory judicial tribunals on the footing that such provisions of Civil Procedure Code are based on equitable principles for ensuring fair trial. 30. In Mathumi Mathai v. Hindustan Organic Chemicals Ltd., 1995(4) SCC 26, it has been held that Order XXI Rule 1 as amended in 1976 is applicable in executing the award made under the Land Acquisition Act after indicating the principle that if the decretal amount is deposited by the judgment debtor pursuant to the order of the Court and the judgment debtor has not given notice of such deposit to the decree holder and also does not specify the manner in which the amount should be appropriated, the decree holder will be entitled to appropriate the amount deposited by the judgment debtor towards interest and other expenses and the decree holder is not bound to adjust the same towards the principal. 31. In Prem Nath Kapur v. National Fertilizers Corporation of India, 1996(2) SCC 71, the decision in Mathunni Mathais case has been expressly overruled by a three Judges Bench of this Court on the finding that Order XXI Rule 1 being inconsistent with the provisions contained in Sections 34 and 28 of the Land Acquisition Act, Such provision of Civil Procedure Code cannot be extended to the execution of award made under the Land Acquisition Act. Dr. Dhavan has rightly contended that in Prem Naths case non applicability of Order XXI Rule 1 Civil Procedure Code on the score of inconsistency with provisions of Land Acquisition Act relating to awards under the said Act has been indicated and for the said reason, applicability of Order XXI, Rule 1 Civil Procedure Code as held in Mathunnis case has been overruled. But applicability of Order XXI Rule 1 Civil Procedure Code in other cases has not been doubted and the principle indicated in Mathunnis case has also not been discarded. On the contrary, it has been held in Prem Naths case that the decision of this Court in Meghraj v. Bayabai, 1969(2) SCC 274 since relied in Mathunnis case is applicable to a debtor and creditor in an ordinary civil suit governed by Civil Procedure Code. 32. It appears to us that the provisions of Order XXI Rule 1 are not in any way inconsistent with the provisions for awarding just and fair compensation in Motor Accident Claims. The real purpose of awarding just and fair compensation to the victim of the accident or the legal heirs of such victim will be fulfilled by applying the principle of Order XXI Rule 1 Civil Procedure Code so that the awardee is not deprived of the opportunity of gainfully utilising the amount under the award for want of notice about the deposit made by judgment debtor resulting in the sum remaining unutilised. In our view, therefore, there is no difficulty to apply the underlying principles under Order XXI, Rule 1 Civil Procedure Code in executing the award of compensation passed by the Motor Accidents Claims Tribunal and the Tribunal must be held to be competent to invoke the beneficial provisions of Order XXI Rule 1 Civil Procedure Code. 33. We may indicate here that before the amendment of Order XXI Rule 1 Civil Procedure Code by the Amending Act, 1976 on the question of liability of the judgment debtor to give notice when the decretal amount is deposited in Court, the High Courts took different views. In Laxminarayan Ganeshdas v. Ghasiraam Dalchand Palaliwal, AIR 1939 Nagpur 191, it has been held that where a decree orders the payment of a sum of money awarding interest until payment and the money is paid by payment into Court under the provision of Order XXI Rule 1, the interest does not run until notice has been given to the decree holder under Order XXI Rule 1 (2) but ceases to run from the date of such payment. Such view of the Nagpur High Court was dissented from in a later decision by the Kerala High Court in State of Kerala v. Mahadeva Iyer, AIR 1969 Kerala 8. The Kerala High Court in the said decision has held that where the interest is awarded by the decree on the decretal amount until payment, it does not cease to run merely by reason of the making of the deposit of the decretal amount into court unless it is followed up by the service of notice as required by Clause (2). It is only when the factum of deposit is brought to the knowledge of the decree holder by service of such notice that the deposit will amount to payment within the meaning of Order XXI Rule 1. In taking the said view, the Kerala High Court has relied on the decision of other High Courts (AIR 1932 Calcutta 111, AIR 1951 Bombay 394, AIR 1952 Trav. Cochin 236, AIR 1955 Madh Bha 126, AIR 1956 Trav. Cochin 46. 34. After the amendment of Order XXI Rule 1 in 1976, there is no scope for any controversy as to the liability of the judgment debtor when the decretal amount is deposited in Court but the notice of such deposit is not given to the decree holder. It is imperative that the judgment debtor has to give notice to the decree holder about deposit for the decretal amount. Since motor accident in the instant case, had taken place on May 7, 1983, Order XXI Rule 1 as amended in 1976 is clearly applicable. Even otherwise also, the provision of Order XXI Rule 1 being a procedural law, amended provisions of Order XXI Rule 1 are applicable even if the accident had taken place prior to 1976 because such amendment of procedural law is retrospective in its operation. 35. | 0[ds]In our view, Dr. Dhavan is justified in his submission that when Haryana has adopted the Punjab Motor Accidents Rules in 1972, it must be held that it has adopted the Punjab Rules as it stood on the date of adoption, namely, January 20, 1972. Order XXI of theCode of Civil Procedure has been expressly made applicable in Punjab Motor Accidents Claims Tribunal Rules by amending the Punjab Rules in June 1968 which was published in Gazette on July 12, 1968. Therefore, by adopting the Motor Accidents Claims Tribunal Rules, 1964 in 1972, it should be held that Haryana has adopted the Punjab Motor Accidents Claims Tribunal Rules, 1964 as stood amended on the date of adoption.Order XXI Rule 1 Civil Procedure Code as amended in 1976 expressly provides that the judgment debtor shall give notice of the deposit of the decretal amount to the decree holder either through the Court or directly to the decree holder. The obligation of giving the notice to the decree holder is not absolved by simply depositing the amount without taking steps to ensure service of the notice of such deposit to the decree holder through Court or otherwise. Therefore, the appellant cannot escape its liability to pay interest to the decree holder for the period between the date of deposit of the decretal amount and the date of notice of such deposit of the decree holder.29.It appears to us that the provisions of Order XXI Rule 1 are not in any way inconsistent with the provisions for awarding just and fair compensation in Motor Accident Claims. The real purpose of awarding just and fair compensation to the victim of the accident or the legal heirs of such victim will be fulfilled by applying the principle of Order XXI Rule 1 Civil Procedure Code so that the awardee is not deprived of the opportunity of gainfully utilising the amount under the award for want of notice about the deposit made by judgment debtor resulting in the sum remaining unutilised. In our view, therefore, there is no difficulty to apply the underlying principles under Order XXI, Rule 1 Civil Procedure Code in executing the award of compensation passed by the Motor Accidents Claims Tribunal and the Tribunal must be held to be competent to invoke the beneficial provisions of Order XXI Rule 1 Civil Procedure Code.After the amendment of Order XXI Rule 1 in 1976, there is no scope for any controversy as to the liability of the judgment debtor when the decretal amount is deposited in Court but the notice of such deposit is not given to the decree holder. It is imperative that the judgment debtor has to give notice to the decree holder about deposit for the decretal amount. Since motor accident in the instant case, had taken place on May 7, 1983, Order XXI Rule 1 as amended in 1976 is clearly applicable. Even otherwise also, the provision of Order XXI Rule 1 being a procedural law, amended provisions of Order XXI Rule 1 are applicable even if the accident had taken place prior to 1976 because such amendment of procedural law is retrospective in its operation. | 0 | 6,333 | 561 | ### 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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20, neither order XXXIII nor Section 25 of Civil Procedure Code have been made expressly applicable. Dr. Dhavan has taken pains in referring to a number of decisions of various High Courts where the underlying principles of Civil Procedure Code have been made applicable in the proceedings before the statutory judicial tribunals on the footing that such provisions of Civil Procedure Code are based on equitable principles for ensuring fair trial. 30. In Mathumi Mathai v. Hindustan Organic Chemicals Ltd., 1995(4) SCC 26, it has been held that Order XXI Rule 1 as amended in 1976 is applicable in executing the award made under the Land Acquisition Act after indicating the principle that if the decretal amount is deposited by the judgment debtor pursuant to the order of the Court and the judgment debtor has not given notice of such deposit to the decree holder and also does not specify the manner in which the amount should be appropriated, the decree holder will be entitled to appropriate the amount deposited by the judgment debtor towards interest and other expenses and the decree holder is not bound to adjust the same towards the principal. 31. In Prem Nath Kapur v. National Fertilizers Corporation of India, 1996(2) SCC 71, the decision in Mathunni Mathais case has been expressly overruled by a three Judges Bench of this Court on the finding that Order XXI Rule 1 being inconsistent with the provisions contained in Sections 34 and 28 of the Land Acquisition Act, Such provision of Civil Procedure Code cannot be extended to the execution of award made under the Land Acquisition Act. Dr. Dhavan has rightly contended that in Prem Naths case non applicability of Order XXI Rule 1 Civil Procedure Code on the score of inconsistency with provisions of Land Acquisition Act relating to awards under the said Act has been indicated and for the said reason, applicability of Order XXI, Rule 1 Civil Procedure Code as held in Mathunnis case has been overruled. But applicability of Order XXI Rule 1 Civil Procedure Code in other cases has not been doubted and the principle indicated in Mathunnis case has also not been discarded. On the contrary, it has been held in Prem Naths case that the decision of this Court in Meghraj v. Bayabai, 1969(2) SCC 274 since relied in Mathunnis case is applicable to a debtor and creditor in an ordinary civil suit governed by Civil Procedure Code. 32. It appears to us that the provisions of Order XXI Rule 1 are not in any way inconsistent with the provisions for awarding just and fair compensation in Motor Accident Claims. The real purpose of awarding just and fair compensation to the victim of the accident or the legal heirs of such victim will be fulfilled by applying the principle of Order XXI Rule 1 Civil Procedure Code so that the awardee is not deprived of the opportunity of gainfully utilising the amount under the award for want of notice about the deposit made by judgment debtor resulting in the sum remaining unutilised. In our view, therefore, there is no difficulty to apply the underlying principles under Order XXI, Rule 1 Civil Procedure Code in executing the award of compensation passed by the Motor Accidents Claims Tribunal and the Tribunal must be held to be competent to invoke the beneficial provisions of Order XXI Rule 1 Civil Procedure Code. 33. We may indicate here that before the amendment of Order XXI Rule 1 Civil Procedure Code by the Amending Act, 1976 on the question of liability of the judgment debtor to give notice when the decretal amount is deposited in Court, the High Courts took different views. In Laxminarayan Ganeshdas v. Ghasiraam Dalchand Palaliwal, AIR 1939 Nagpur 191, it has been held that where a decree orders the payment of a sum of money awarding interest until payment and the money is paid by payment into Court under the provision of Order XXI Rule 1, the interest does not run until notice has been given to the decree holder under Order XXI Rule 1 (2) but ceases to run from the date of such payment. Such view of the Nagpur High Court was dissented from in a later decision by the Kerala High Court in State of Kerala v. Mahadeva Iyer, AIR 1969 Kerala 8. The Kerala High Court in the said decision has held that where the interest is awarded by the decree on the decretal amount until payment, it does not cease to run merely by reason of the making of the deposit of the decretal amount into court unless it is followed up by the service of notice as required by Clause (2). It is only when the factum of deposit is brought to the knowledge of the decree holder by service of such notice that the deposit will amount to payment within the meaning of Order XXI Rule 1. In taking the said view, the Kerala High Court has relied on the decision of other High Courts (AIR 1932 Calcutta 111, AIR 1951 Bombay 394, AIR 1952 Trav. Cochin 236, AIR 1955 Madh Bha 126, AIR 1956 Trav. Cochin 46. 34. After the amendment of Order XXI Rule 1 in 1976, there is no scope for any controversy as to the liability of the judgment debtor when the decretal amount is deposited in Court but the notice of such deposit is not given to the decree holder. It is imperative that the judgment debtor has to give notice to the decree holder about deposit for the decretal amount. Since motor accident in the instant case, had taken place on May 7, 1983, Order XXI Rule 1 as amended in 1976 is clearly applicable. Even otherwise also, the provision of Order XXI Rule 1 being a procedural law, amended provisions of Order XXI Rule 1 are applicable even if the accident had taken place prior to 1976 because such amendment of procedural law is retrospective in its operation. 35.
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In our view, Dr. Dhavan is justified in his submission that when Haryana has adopted the Punjab Motor Accidents Rules in 1972, it must be held that it has adopted the Punjab Rules as it stood on the date of adoption, namely, January 20, 1972. Order XXI of theCode of Civil Procedure has been expressly made applicable in Punjab Motor Accidents Claims Tribunal Rules by amending the Punjab Rules in June 1968 which was published in Gazette on July 12, 1968. Therefore, by adopting the Motor Accidents Claims Tribunal Rules, 1964 in 1972, it should be held that Haryana has adopted the Punjab Motor Accidents Claims Tribunal Rules, 1964 as stood amended on the date of adoption.Order XXI Rule 1 Civil Procedure Code as amended in 1976 expressly provides that the judgment debtor shall give notice of the deposit of the decretal amount to the decree holder either through the Court or directly to the decree holder. The obligation of giving the notice to the decree holder is not absolved by simply depositing the amount without taking steps to ensure service of the notice of such deposit to the decree holder through Court or otherwise. Therefore, the appellant cannot escape its liability to pay interest to the decree holder for the period between the date of deposit of the decretal amount and the date of notice of such deposit of the decree holder.29.It appears to us that the provisions of Order XXI Rule 1 are not in any way inconsistent with the provisions for awarding just and fair compensation in Motor Accident Claims. The real purpose of awarding just and fair compensation to the victim of the accident or the legal heirs of such victim will be fulfilled by applying the principle of Order XXI Rule 1 Civil Procedure Code so that the awardee is not deprived of the opportunity of gainfully utilising the amount under the award for want of notice about the deposit made by judgment debtor resulting in the sum remaining unutilised. In our view, therefore, there is no difficulty to apply the underlying principles under Order XXI, Rule 1 Civil Procedure Code in executing the award of compensation passed by the Motor Accidents Claims Tribunal and the Tribunal must be held to be competent to invoke the beneficial provisions of Order XXI Rule 1 Civil Procedure Code.After the amendment of Order XXI Rule 1 in 1976, there is no scope for any controversy as to the liability of the judgment debtor when the decretal amount is deposited in Court but the notice of such deposit is not given to the decree holder. It is imperative that the judgment debtor has to give notice to the decree holder about deposit for the decretal amount. Since motor accident in the instant case, had taken place on May 7, 1983, Order XXI Rule 1 as amended in 1976 is clearly applicable. Even otherwise also, the provision of Order XXI Rule 1 being a procedural law, amended provisions of Order XXI Rule 1 are applicable even if the accident had taken place prior to 1976 because such amendment of procedural law is retrospective in its operation.
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M.C. Mehta Vs. Union of India & Others | emission norms would be prohibited. It did not do so to enable all concerned, particularly the auto industry and marketing strategists to gradually manage their affairs rather than subject them to a sudden future shock. The scheme of a gradual phase-out is now sought to be perverted through a literal interpretation of each notification, unfortunately, for a commercial benefit rather than being appreciated in a larger canvas for the benefit of society as a whole. 53. There is no doubt, therefore, that the various notifications issued and the amendments made to the Rules must be read cumulatively in a purposive manner with the objective of enhancing or protecting further deterioration of the quality of the air we breathe from a continuing and continuous onslaught of pollutants. Office memorandum of 3rd March, 2015 54. In was submitted by learned counsel for the interveners that inherent in the manufacture of BS-III compliant vehicles was their entitlement to sell such vehicles any time on or after 1st April, 2017 until the accumulated stock is exhausted. Given the experience of the past, they legitimately expected that they would be allowed to clear the accumulated stock. We questioned learned counsel for the interveners on the time required for disposal of the accumulated stock. No one gave any definite answer - the answers varied from about 5 and 6 months to one year and hedged in with conditions dependent upon market forces and slow moving models. Perhaps Siri would have given a more definite answer.55. In this context, reference was made to the most recent office memorandum dated 3rd March, 2015 issued by the Ministry of Road Transport and Highways. It was submitted that the office memorandum made clear the intention of the various notifications, namely, to ensure the manufacture of only BS-IV compliant vehicles after 1st April, 2017 and at the same time ensure that BS-III compliant vehicles manufactured on or before 31st March, 2017 are protected and registered. This is clear from the statement in the office memorandum that there is no bar on vehicles produced prior to the above time lines, meaning thereby that BS-III compliant vehicles manufactured on or before 31st March, 2017 could be sold or registered keeping in view the past practice.56. In our opinion, the only reasonable construction of the office memorandum (issued two years ago) would be that subject to the occurrence of some extraordinary or unforeseen event, should it become necessary to sell and register BS-III compliant vehicles on or after 1st April, 2017 limited exceptions on a case to case basis could be claimed and considered. The office memorandum cannot reasonably be interpreted as a carte blanche to the automobile industry to continue the manufacture of BS-III compliant vehicles till the very last day and then plead the necessity of clearing accumulated stock of BS-III vehicles. This would make a mockery of the efforts of all concerned in regulating vehicular emissions and virtually enabling the interveners to emasculate an important component of the right to life guaranteed by Article 21 of the Constitution, namely, the entitlement of millions of our country men and women to breathe less polluted air and ignore public health issues in conducting their business. We cannot be asked to shut our eyes to the phenomenal rise in pollution levels in the country. Blaming EPCA57. It was also contended by learned counsel for the interveners that the automobile industry (as indeed any other industry) needs stability, certainty and predictability in the regulatory regime. This is undoubtedly true but that stability, certainty and predictability was apparent from the time the National Auto Fuel Policy was announced in 2003. Rather than admit responsibility for a lack of concern of public health issues, some of the interveners have sought to blame EPCA for its failure to approach the Government of India to seek amendments to the notifications issued from time to time and to incorporate a prohibition on the sale and registration of BS-III compliant vehicles on or after 1st April, 2017. Unfortunately, finger-pointing and blame games do not lead anyone anywhere and deserve to be discouraged.58. In any event, the fact is that EPCA had convened a meeting of all stakeholders on 19th October, 2016 and had brought to the notice of the representatives of SIAM that there would be no sale and registration of BS-III compliant vehicles from 1st April, 2017 and that this should be communicated to all manufacturers. The clear intention of EPCA was to give sufficient notice of almost six months to enable the automobile industry to plan its production and sale and take pro-active steps to significantly decrease the production of BS-III compliant vehicles and correspondingly significantly increase the production of BS-IV compliant vehicles. Unfortunately, SIAM did not heed the caution but expressed the view that it would be difficult to ensure compliance. We were also told that EPCA had no jurisdiction or authority to give such a direction. However, that is not an issue of concern at the present moment.59. EPCA also pointed out in the meeting that BS-IV compliant vehicles reduce pollution by 80% of particulate matter as compared to BS-III compliant vehicles, but even this had no effect.60. The meeting convened by EPCA was followed up by the CPCB when it wrote to SIAM on 10th December, 2016 reiterating that BS-IV fuel would be available all over the country from 1st April, 2017 and that the automobile industry should ensure that the stock of BS-III compliant vehicles are exhausted before that date for reasons mentioned in the minutes of the meeting held on 19th October, 2016. Even this had no effect on SIAM. Therefore, to blame EPCA for their problems is rather unfair of the interveners.61. However one may look at the issue of air pollution, it is time to realize that a collective effort is needed to clear up the air. In this process, the interveners have a huge role and they should now wake up to their responsibility for the benefit of all of us. | 1[ds]In other words, we take it that the Government was and issupporting the reduction of vehicular pollution by controlling the emission norms and complying with the Bharat Stage standards keeping in view the auto fuel policy and the Report of the Expert Committee referred to by the Parliamentary Standing Committee.In our opinion, the interveners have completely ignored the history of the last a decade or so which led to the introduction of Bharat Stage norms and their implementation in a phased manner. The Auto Fuel Policy was announced by the Government of India, as mentioned by the Parliamentary Standing Committee, taking into account, inter alia, the rapid growth in the automobile industry and the increasing number of vehicular population which had become "one of the major causes in the phenomenal rise of air pollution in India." The Standing Committee noted that air pollution is caused by several factors but the dramatic rise in vehicular emissions has compounded the problem.39. It is quite evident therefore that given the recent history and unfolding of events, it was incumbent upon the automobile industry to modulate its views and give secondary importance to commercial profits and takesteps to reduce vehicular pollution. It seems that the automobile industry was quite sanguine that its desire for selling accumulated stock ofcompliant vehicles even after 1st April, 2017 would be acceded to. This is evident from the past practice when it had become necessary, in one sense, for the Government of India to virtually submit to the commercial interests of the automobile industry by permitting the registration ofcompliant vehicles in some cities while permitting the sale and registration ofII compliant vehicles in other cities even after thedate of 1st April, 2005 till the accumulated stock is exhausted.exhausted.41. No one knows, nor were we told how long these accumulated stock were expected to last or actually lasted. But the fact of the matter is that we would have expected the automobile industry to have shown some responsibility and taken a positive approach to reduce vehicular pollution and ensure thatvehicles are not manufactured so that air pollution in the country does not continue unabated and to take measures to curtail the phenomenal rise in air pollution recognized by the Parliamentary Standing Committee.The sum and substance of the discussion is that the automobile industry had, at the very minimum, awarning that it would have to consider issues relating to air pollution as a part of its manufacturing activities and production strategy and thereafter the industry had more than five years to plan out its activities and revisit the strategy, but did not do so.45. On the contrary the automobile industry gave a variety of excuses for not making adjustments for the benefit of the people of the country. Similarly, efforts of the Government to regulate and reduce vehicular emissions were not given the support that they deserved, including taking advantage of time granted for phased introduction ofcomplaint vehicles as per the Government policy. It was submitted during the hearing that the sale ofcompliant vehicles would depend on market forces; at one time it was submitted that demonetization (which took place in November, 2016) upset their plans; at another time it was submitted that some models are slow moving and therefore could not be sold and yet at another time it was submitted that weak market conditions did not make it possible for the industry to dispose of the existingcompliant stock. None of these explanations justify the failure of the automobile industry to increase the production ofcompliant vehicles, in spite of sufficient notice of aand reduce the production ofcompliant vehicles. The attempt, sadly, seems to have been to push all concerned to the wall by putting before them a fait accompli situation and by ignoring the concerns of millions of our country men and women who are entitled to breathe fresh air or at least breathe less polluted air. As is apparent from the figures relating to the production ofIV compliant vehicles supplied to us, this activity and inactivity has been entirely for commercial benefits and to avoid the cost of upgrading availablerespect, this submission cannot be accepted. The health of every person in our country is important and we are more than reluctant to accept any submission that the health of the people can be compromised, even in the smallest measure, for the commercial interests of the automobile industry or of any industry for that matter. Additionally, given that the life of such vehicles would be at least 10 years (as submitted by the interveners) the concern is not only for the present population of the country but for future generations who also have an entitlement to breathe pollution free air. This is what sustainable development andequity is all about.Learned Amicus is right that the entire issue must be looked at in a particular context, as a matter of public health and as a matter of public concern. It is a matter of common knowledge that polluted air can lead to a variety of health problems and this is evident from a casual visit to the website of the CPCB and the World Health Organization. Admittedly, the use ofauto fuel reduces particulate matter in the air by 80% as compared toauto fuel. Under these circumstances, it cannot be said that learned Amicus erroneously seeks a prohibition on the sale and registration ofcompliant vehicles on and from 1st April, 2017.Additionally, if the entire scheme laid out by the Governmentof discouraging the manufacture of polluting vehicles and gradually phasing them out coupled with their gradual replacement with fuel efficient vehicles, availability of cleaner and greener fuel and compliance with fuel emission norms is appreciated in a much larger context rather than on a notification by notification basisthe objective behind the scheme would be apparent. The Government could very well have issued one single notification way back in 2010 that with effect from 1st April, 2017 the manufacture, sale and registration of vehicles that do not comply withemission norms would be prohibited. It did not do so to enable all concerned, particularly the auto industry and marketing strategists to gradually manage their affairs rather than subject them to a sudden future shock. The scheme of a gradualis now sought to be perverted through a literal interpretation of each notification, unfortunately, for a commercial benefit rather than being appreciated in a larger canvas for the benefit of society as aquestioned learned counsel for the interveners on the time required for disposal of the accumulated stock. No one gave any definite answerthe answers varied from about 5 and 6 months to one year and hedged in with conditions dependent upon market forces and slow moving models. Perhaps Siri would have given a more definite answer.This is clear from the statement in the office memorandum that there is no bar on vehicles produced prior to the above time lines, meaning thereby thatcompliant vehicles manufactured on or before 31st March, 2017 could be sold or registered keeping in view the past practice.56. In our opinion, the only reasonable construction of the office memorandum (issued two years ago) would be that subject to the occurrence of some extraordinary or unforeseen event, should it become necessary to sell and registercompliant vehicles on or after 1st April, 2017 limited exceptions on a case to case basis could be claimed and considered. The office memorandum cannot reasonably be interpreted as a carte blanche to the automobile industry to continue the manufacture ofcompliant vehicles till the very last day and then plead the necessity of clearing accumulated stock ofvehicles. This would make a mockery of the efforts of all concerned in regulating vehicular emissions and virtually enabling the interveners to emasculate an important component of the right to life guaranteed by Article 21 of the Constitution, namely, the entitlement of millions of our country men and women to breathe less polluted air and ignore public health issues in conducting their business. We cannot be asked to shut our eyes to the phenomenal rise in pollution levels in theis undoubtedly true but that stability, certainty and predictability was apparent from the time the National Auto Fuel Policy was announced in 2003. Rather than admit responsibility for a lack of concern of public health issues, some of the interveners have sought to blame EPCA for its failure to approach the Government of India to seek amendments to the notifications issued from time to time and to incorporate a prohibition on the sale and registration ofcompliant vehicles on or after 1st April, 2017. Unfortunately,and blame games do not lead anyone anywhere and deserve to be discouraged.58. In any event, the fact is that EPCA had convened a meeting of all stakeholders on 19th October, 2016 and had brought to the notice of the representatives of SIAM that there would be no sale and registration ofcompliant vehicles from 1st April, 2017 and that this should be communicated to all manufacturers. The clear intention of EPCA was to give sufficient notice of almost six months to enable the automobile industry to plan its production and sale and takesteps to significantly decrease the production ofcompliant vehicles and correspondingly significantly increase the production ofcompliant vehicles. Unfortunately, SIAM did not heed the caution but expressed the view that it would be difficult to ensure compliance. We were also told that EPCA had no jurisdiction or authority to give such a direction. However, that is not an issue of concern at the present moment.59. EPCA also pointed out in the meeting thatcompliant vehicles reduce pollution by 80% of particulate matter as compared tocompliant vehicles, but even this had no effect.60. The meeting convened by EPCA was followed up by the CPCB when it wrote to SIAM on 10th December, 2016 reiterating thatfuel would be available all over the country from 1st April, 2017 and that the automobile industry should ensure that the stock ofcompliant vehicles are exhausted before that date for reasons mentioned in the minutes of the meeting held on 19th October, 2016. Even this had no effect on SIAM. Therefore, to blame EPCA for their problems is rather unfair of the interveners.61. However one may look at the issue of air pollution, it is time to realize that a collective effort is needed to clear up the air. In this process, the interveners have a huge role and they should now wake up to their responsibility for the benefit of all of us. | 1 | 7,037 | 1,856 | ### 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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emission norms would be prohibited. It did not do so to enable all concerned, particularly the auto industry and marketing strategists to gradually manage their affairs rather than subject them to a sudden future shock. The scheme of a gradual phase-out is now sought to be perverted through a literal interpretation of each notification, unfortunately, for a commercial benefit rather than being appreciated in a larger canvas for the benefit of society as a whole. 53. There is no doubt, therefore, that the various notifications issued and the amendments made to the Rules must be read cumulatively in a purposive manner with the objective of enhancing or protecting further deterioration of the quality of the air we breathe from a continuing and continuous onslaught of pollutants. Office memorandum of 3rd March, 2015 54. In was submitted by learned counsel for the interveners that inherent in the manufacture of BS-III compliant vehicles was their entitlement to sell such vehicles any time on or after 1st April, 2017 until the accumulated stock is exhausted. Given the experience of the past, they legitimately expected that they would be allowed to clear the accumulated stock. We questioned learned counsel for the interveners on the time required for disposal of the accumulated stock. No one gave any definite answer - the answers varied from about 5 and 6 months to one year and hedged in with conditions dependent upon market forces and slow moving models. Perhaps Siri would have given a more definite answer.55. In this context, reference was made to the most recent office memorandum dated 3rd March, 2015 issued by the Ministry of Road Transport and Highways. It was submitted that the office memorandum made clear the intention of the various notifications, namely, to ensure the manufacture of only BS-IV compliant vehicles after 1st April, 2017 and at the same time ensure that BS-III compliant vehicles manufactured on or before 31st March, 2017 are protected and registered. This is clear from the statement in the office memorandum that there is no bar on vehicles produced prior to the above time lines, meaning thereby that BS-III compliant vehicles manufactured on or before 31st March, 2017 could be sold or registered keeping in view the past practice.56. In our opinion, the only reasonable construction of the office memorandum (issued two years ago) would be that subject to the occurrence of some extraordinary or unforeseen event, should it become necessary to sell and register BS-III compliant vehicles on or after 1st April, 2017 limited exceptions on a case to case basis could be claimed and considered. The office memorandum cannot reasonably be interpreted as a carte blanche to the automobile industry to continue the manufacture of BS-III compliant vehicles till the very last day and then plead the necessity of clearing accumulated stock of BS-III vehicles. This would make a mockery of the efforts of all concerned in regulating vehicular emissions and virtually enabling the interveners to emasculate an important component of the right to life guaranteed by Article 21 of the Constitution, namely, the entitlement of millions of our country men and women to breathe less polluted air and ignore public health issues in conducting their business. We cannot be asked to shut our eyes to the phenomenal rise in pollution levels in the country. Blaming EPCA57. It was also contended by learned counsel for the interveners that the automobile industry (as indeed any other industry) needs stability, certainty and predictability in the regulatory regime. This is undoubtedly true but that stability, certainty and predictability was apparent from the time the National Auto Fuel Policy was announced in 2003. Rather than admit responsibility for a lack of concern of public health issues, some of the interveners have sought to blame EPCA for its failure to approach the Government of India to seek amendments to the notifications issued from time to time and to incorporate a prohibition on the sale and registration of BS-III compliant vehicles on or after 1st April, 2017. Unfortunately, finger-pointing and blame games do not lead anyone anywhere and deserve to be discouraged.58. In any event, the fact is that EPCA had convened a meeting of all stakeholders on 19th October, 2016 and had brought to the notice of the representatives of SIAM that there would be no sale and registration of BS-III compliant vehicles from 1st April, 2017 and that this should be communicated to all manufacturers. The clear intention of EPCA was to give sufficient notice of almost six months to enable the automobile industry to plan its production and sale and take pro-active steps to significantly decrease the production of BS-III compliant vehicles and correspondingly significantly increase the production of BS-IV compliant vehicles. Unfortunately, SIAM did not heed the caution but expressed the view that it would be difficult to ensure compliance. We were also told that EPCA had no jurisdiction or authority to give such a direction. However, that is not an issue of concern at the present moment.59. EPCA also pointed out in the meeting that BS-IV compliant vehicles reduce pollution by 80% of particulate matter as compared to BS-III compliant vehicles, but even this had no effect.60. The meeting convened by EPCA was followed up by the CPCB when it wrote to SIAM on 10th December, 2016 reiterating that BS-IV fuel would be available all over the country from 1st April, 2017 and that the automobile industry should ensure that the stock of BS-III compliant vehicles are exhausted before that date for reasons mentioned in the minutes of the meeting held on 19th October, 2016. Even this had no effect on SIAM. Therefore, to blame EPCA for their problems is rather unfair of the interveners.61. However one may look at the issue of air pollution, it is time to realize that a collective effort is needed to clear up the air. In this process, the interveners have a huge role and they should now wake up to their responsibility for the benefit of all of us.
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that matter. Additionally, given that the life of such vehicles would be at least 10 years (as submitted by the interveners) the concern is not only for the present population of the country but for future generations who also have an entitlement to breathe pollution free air. This is what sustainable development andequity is all about.Learned Amicus is right that the entire issue must be looked at in a particular context, as a matter of public health and as a matter of public concern. It is a matter of common knowledge that polluted air can lead to a variety of health problems and this is evident from a casual visit to the website of the CPCB and the World Health Organization. Admittedly, the use ofauto fuel reduces particulate matter in the air by 80% as compared toauto fuel. Under these circumstances, it cannot be said that learned Amicus erroneously seeks a prohibition on the sale and registration ofcompliant vehicles on and from 1st April, 2017.Additionally, if the entire scheme laid out by the Governmentof discouraging the manufacture of polluting vehicles and gradually phasing them out coupled with their gradual replacement with fuel efficient vehicles, availability of cleaner and greener fuel and compliance with fuel emission norms is appreciated in a much larger context rather than on a notification by notification basisthe objective behind the scheme would be apparent. The Government could very well have issued one single notification way back in 2010 that with effect from 1st April, 2017 the manufacture, sale and registration of vehicles that do not comply withemission norms would be prohibited. It did not do so to enable all concerned, particularly the auto industry and marketing strategists to gradually manage their affairs rather than subject them to a sudden future shock. The scheme of a gradualis now sought to be perverted through a literal interpretation of each notification, unfortunately, for a commercial benefit rather than being appreciated in a larger canvas for the benefit of society as aquestioned learned counsel for the interveners on the time required for disposal of the accumulated stock. No one gave any definite answerthe answers varied from about 5 and 6 months to one year and hedged in with conditions dependent upon market forces and slow moving models. Perhaps Siri would have given a more definite answer.This is clear from the statement in the office memorandum that there is no bar on vehicles produced prior to the above time lines, meaning thereby thatcompliant vehicles manufactured on or before 31st March, 2017 could be sold or registered keeping in view the past practice.56. In our opinion, the only reasonable construction of the office memorandum (issued two years ago) would be that subject to the occurrence of some extraordinary or unforeseen event, should it become necessary to sell and registercompliant vehicles on or after 1st April, 2017 limited exceptions on a case to case basis could be claimed and considered. The office memorandum cannot reasonably be interpreted as a carte blanche to the automobile industry to continue the manufacture ofcompliant vehicles till the very last day and then plead the necessity of clearing accumulated stock ofvehicles. This would make a mockery of the efforts of all concerned in regulating vehicular emissions and virtually enabling the interveners to emasculate an important component of the right to life guaranteed by Article 21 of the Constitution, namely, the entitlement of millions of our country men and women to breathe less polluted air and ignore public health issues in conducting their business. We cannot be asked to shut our eyes to the phenomenal rise in pollution levels in theis undoubtedly true but that stability, certainty and predictability was apparent from the time the National Auto Fuel Policy was announced in 2003. Rather than admit responsibility for a lack of concern of public health issues, some of the interveners have sought to blame EPCA for its failure to approach the Government of India to seek amendments to the notifications issued from time to time and to incorporate a prohibition on the sale and registration ofcompliant vehicles on or after 1st April, 2017. Unfortunately,and blame games do not lead anyone anywhere and deserve to be discouraged.58. In any event, the fact is that EPCA had convened a meeting of all stakeholders on 19th October, 2016 and had brought to the notice of the representatives of SIAM that there would be no sale and registration ofcompliant vehicles from 1st April, 2017 and that this should be communicated to all manufacturers. The clear intention of EPCA was to give sufficient notice of almost six months to enable the automobile industry to plan its production and sale and takesteps to significantly decrease the production ofcompliant vehicles and correspondingly significantly increase the production ofcompliant vehicles. Unfortunately, SIAM did not heed the caution but expressed the view that it would be difficult to ensure compliance. We were also told that EPCA had no jurisdiction or authority to give such a direction. However, that is not an issue of concern at the present moment.59. EPCA also pointed out in the meeting thatcompliant vehicles reduce pollution by 80% of particulate matter as compared tocompliant vehicles, but even this had no effect.60. The meeting convened by EPCA was followed up by the CPCB when it wrote to SIAM on 10th December, 2016 reiterating thatfuel would be available all over the country from 1st April, 2017 and that the automobile industry should ensure that the stock ofcompliant vehicles are exhausted before that date for reasons mentioned in the minutes of the meeting held on 19th October, 2016. Even this had no effect on SIAM. Therefore, to blame EPCA for their problems is rather unfair of the interveners.61. However one may look at the issue of air pollution, it is time to realize that a collective effort is needed to clear up the air. In this process, the interveners have a huge role and they should now wake up to their responsibility for the benefit of all of us.
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Harivadan Babubhai Patel Vs. State Of Gujarat | each case so as to find whether the witnesses are available for being examined in the court and were yet withheld by the prosecution. The three-Judge Bench further proceeded to observe that the court is required first to assess the trustworthiness of the evidence available on record and if the court finds the evidence adduced worthy of being relied on, then the testimony has to be accepted and acted upon though there may be other witnesses available who could also have been examined but were not examined. 19. In TakhajiHiraji v. ThakoreKubersing Chamansing and others (2001) 6 SCC 145 ), the Court has opined thus: - “It is true that if a material witness, who would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which could have been supplied or made good by examining a witness who though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the court to draw an adverse inference against the prosecution by holding that if the witness would have been examined it would not have supported the prosecution case. On the other hand if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non-examination of such other witnesses may not be material. In such a case the court ought to scrutinize the worth of the evidence adduced. The court of facts must ask itself — whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the court. If the answer be positive then only a question of drawing an adverse inference may arise. If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable the court can safely act upon it, uninfluenced by the factum of non-examination of other witnesses.” 20. In Dahariand others v. State of Uttar Pradesh (2012) 10 SCC 256 ), while discussing about the non-examination of material witness, the Court expressed the view that when he was not the only competent witness who would have been fully capable of explaining the factual situation correctly and the prosecution case stood fully corroborated by the medical evidence and thetestimony of other reliable witnesses, no adverse inference could be drawn against the prosecution. Be it noted, the Court also took note of the fact that during the cross-examination of the Investigating Officer, none of the accused persons had voiced their concerns or raised any apprehension regarding the non-examination of the material witness therein. 21. In the case at hand, it was A-1 who had announced that he was taking the deceased to the house of Gulia. On a search being conducted, nothing has been found from the house of Gulia. There has been no cross-examination of the Investigating Officer about the non-examination of Gulia. On the contrary, it was A-1 who had led to the discovery of the dead body and other articles. Thus, when the other evidence on record are cogent, credible and meet the test of circumstantial evidence laid down in SharadBirdhichand Sarda v. State of Mararashtra (1984) 4 SCC 116 ) State v. Saravanan(2008) 17 SCC 587 ), Sunil Kumar Sambhudayal Gupta v. State of Maharashtra (2010) 13 SCC 657 ) and further reiterated in JagroopSingh v. State of Punjab (2012) 11 SCC 768 ), there is no justification to come to hold that the prosecution has deliberately withheld a witness that creates a concavity in the concept of fair trial. 22. Another facet is required to be addressed to. Though all the incriminating circumstances which point to the guilt of the accused had been put to him, yet he chose not to give any explanation under Section 313 CrPC except choosing the mode of denial. It is well settled in law that when the attention of the accused is drawn to the said circumstances that inculpated him in the crime and he fails to offer appropriate explanation or gives a false answer, the same can be counted as providing a missing link for building the chain of circumstances. (See State of Maharashtra v. Suresh (2000) 1 SCC 471 ). In the case at hand, though number of circumstances were put to the accused, yet he has made a bald denial and did not offer any explanation whatsoever. Thus, it is also a circumstance that goes against him. 23. We will be failing in our duty if we do not note another submission of the learned counsel for the appellant. It is urged by him that A-2 stood on the same footing as the appellant and hence, the High Court should have acquitted him. It is also canvassed by him that A-2 has been acquitted of the charge of criminal conspiracy and, therefore, the appellant deserves to be acquitted. The High Court has taken note of the fact that A-2 was not identified by any one in the test identification parade. It has also noticed number of material contradictions and omissions and, accordingly, acquitted A-2. As far as the appellant is concerned, all the circumstances lead towards his guilt. As far as conspiracy under Section 120B is concerned, we are inclined to think that the High Court erred in not recording an order of acquittal under Section 120B as no other accused had been found guilty. The conviction under Section 120B cannot be sustained when the other accused persons have been acquitted, for an offence of conspiracy cannot survive if there is acquittal of the other alleged co-conspirators. It has been so laid down in Fakhruddinv. The State of Madhya Pradesh (AIR 1967 SC 1326 ). Thus, the conviction of the appellant under Section 120B is set aside. 24. | 0[ds]We will be failing in our duty if we do not note another submission of the learned counsel for the appellant. It is urged by him that A-2 stood on the same footing as the appellant and hence, the High Court should have acquitted him. It is also canvassed by him that A-2 has been acquitted of the charge of criminal conspiracy and, therefore, the appellant deserves to be acquitted. The High Court has taken note of the fact that A-2 was not identified by any one in the test identification parade. It has also noticed number of material contradictions and omissions and, accordingly, acquitted A-2. As far as the appellant is concerned, all the circumstances lead towards his guilt. As far as conspiracy under Section 120B is concerned, we are inclined to think that the High Court erred in not recording an order of acquittal under Section 120B as no other accused had been found guilty. The conviction under Section 120B cannot be sustained when the other accused persons have been acquitted, for an offence of conspiracy cannot survive if there is acquittal of the other alleged co-conspirators. It has been so laid down in Fakhruddinv. The State of Madhya Pradesh (AIR 1967 SC 1326 ). Thus, the conviction of the appellant under Section 120B is set aside. | 0 | 4,145 | 246 | ### 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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each case so as to find whether the witnesses are available for being examined in the court and were yet withheld by the prosecution. The three-Judge Bench further proceeded to observe that the court is required first to assess the trustworthiness of the evidence available on record and if the court finds the evidence adduced worthy of being relied on, then the testimony has to be accepted and acted upon though there may be other witnesses available who could also have been examined but were not examined. 19. In TakhajiHiraji v. ThakoreKubersing Chamansing and others (2001) 6 SCC 145 ), the Court has opined thus: - “It is true that if a material witness, who would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which could have been supplied or made good by examining a witness who though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the court to draw an adverse inference against the prosecution by holding that if the witness would have been examined it would not have supported the prosecution case. On the other hand if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non-examination of such other witnesses may not be material. In such a case the court ought to scrutinize the worth of the evidence adduced. The court of facts must ask itself — whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the court. If the answer be positive then only a question of drawing an adverse inference may arise. If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable the court can safely act upon it, uninfluenced by the factum of non-examination of other witnesses.” 20. In Dahariand others v. State of Uttar Pradesh (2012) 10 SCC 256 ), while discussing about the non-examination of material witness, the Court expressed the view that when he was not the only competent witness who would have been fully capable of explaining the factual situation correctly and the prosecution case stood fully corroborated by the medical evidence and thetestimony of other reliable witnesses, no adverse inference could be drawn against the prosecution. Be it noted, the Court also took note of the fact that during the cross-examination of the Investigating Officer, none of the accused persons had voiced their concerns or raised any apprehension regarding the non-examination of the material witness therein. 21. In the case at hand, it was A-1 who had announced that he was taking the deceased to the house of Gulia. On a search being conducted, nothing has been found from the house of Gulia. There has been no cross-examination of the Investigating Officer about the non-examination of Gulia. On the contrary, it was A-1 who had led to the discovery of the dead body and other articles. Thus, when the other evidence on record are cogent, credible and meet the test of circumstantial evidence laid down in SharadBirdhichand Sarda v. State of Mararashtra (1984) 4 SCC 116 ) State v. Saravanan(2008) 17 SCC 587 ), Sunil Kumar Sambhudayal Gupta v. State of Maharashtra (2010) 13 SCC 657 ) and further reiterated in JagroopSingh v. State of Punjab (2012) 11 SCC 768 ), there is no justification to come to hold that the prosecution has deliberately withheld a witness that creates a concavity in the concept of fair trial. 22. Another facet is required to be addressed to. Though all the incriminating circumstances which point to the guilt of the accused had been put to him, yet he chose not to give any explanation under Section 313 CrPC except choosing the mode of denial. It is well settled in law that when the attention of the accused is drawn to the said circumstances that inculpated him in the crime and he fails to offer appropriate explanation or gives a false answer, the same can be counted as providing a missing link for building the chain of circumstances. (See State of Maharashtra v. Suresh (2000) 1 SCC 471 ). In the case at hand, though number of circumstances were put to the accused, yet he has made a bald denial and did not offer any explanation whatsoever. Thus, it is also a circumstance that goes against him. 23. We will be failing in our duty if we do not note another submission of the learned counsel for the appellant. It is urged by him that A-2 stood on the same footing as the appellant and hence, the High Court should have acquitted him. It is also canvassed by him that A-2 has been acquitted of the charge of criminal conspiracy and, therefore, the appellant deserves to be acquitted. The High Court has taken note of the fact that A-2 was not identified by any one in the test identification parade. It has also noticed number of material contradictions and omissions and, accordingly, acquitted A-2. As far as the appellant is concerned, all the circumstances lead towards his guilt. As far as conspiracy under Section 120B is concerned, we are inclined to think that the High Court erred in not recording an order of acquittal under Section 120B as no other accused had been found guilty. The conviction under Section 120B cannot be sustained when the other accused persons have been acquitted, for an offence of conspiracy cannot survive if there is acquittal of the other alleged co-conspirators. It has been so laid down in Fakhruddinv. The State of Madhya Pradesh (AIR 1967 SC 1326 ). Thus, the conviction of the appellant under Section 120B is set aside. 24.
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We will be failing in our duty if we do not note another submission of the learned counsel for the appellant. It is urged by him that A-2 stood on the same footing as the appellant and hence, the High Court should have acquitted him. It is also canvassed by him that A-2 has been acquitted of the charge of criminal conspiracy and, therefore, the appellant deserves to be acquitted. The High Court has taken note of the fact that A-2 was not identified by any one in the test identification parade. It has also noticed number of material contradictions and omissions and, accordingly, acquitted A-2. As far as the appellant is concerned, all the circumstances lead towards his guilt. As far as conspiracy under Section 120B is concerned, we are inclined to think that the High Court erred in not recording an order of acquittal under Section 120B as no other accused had been found guilty. The conviction under Section 120B cannot be sustained when the other accused persons have been acquitted, for an offence of conspiracy cannot survive if there is acquittal of the other alleged co-conspirators. It has been so laid down in Fakhruddinv. The State of Madhya Pradesh (AIR 1967 SC 1326 ). Thus, the conviction of the appellant under Section 120B is set aside.
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Sir Shadi Lal Sugar And General Millsltd. & Anr Vs. Commissioner Of Income Tax, Delhi | is not the same thing as deliberate concealment or furnishing inaccurate particulars. At least in the background of the law as it stood at the relevant time, that was the position. There have been some changes subsequently which we have not noticed for the present purposeIn Omar Salay Mohamed Sait v. CIT [1959] 37 ITR 151 , this court held that the Income-tax Appellate Tribunal was a fact-finding tribunal and if it arrived at its own conclusions of fact after due consideration of the evidence before it, the court could not interfere. It was necessary, however, that every fact for and against the assessee must have been considered with due care and the Tribunal must have given its finding in a manner which would clearly indicate what were the questions which arose for determination, what was the evidence pro and contra in regard to each one of them and what were the findings reached on the evidence on record before it. The conclusions reached by the Tribunal should not be coloured by any irrelevant considerations or matters of prejudice and if there were any circumstances which required to be explained by the assessee, the assessee should be given an opportunity of doing so. In this case, the Tribunal had taken into consideration the fact that the assessee had admitted the additions as its income when faced with non-disclosure in assessment proceedings. The High Court accused the Tribunal of not considering the time when the assessee admitted the additions. 7. We find that it was duly considered by the Tribunal. We find that the assessee, admitted that these were the incomes of the assessee but that was not an admission that there was deliberate concealment. From agreeing to additions, it does not follow that the amount agreed to be added was concealed income. There may be hundred and one reasons for such admission, i.e., when the assessee realises the true position, it does not dispute certain disallowances but that does not absolve the Revenue from proving the mens rea of a quasicriminal offence. In Udhavdas Kewalram v. CIT [1967] 66 ITR 462 , the court held that the Income-tax Appellate Tribunal performed a judicial function under the Income-tax Act and it was invested with authority to determine finally all questions of fact. The Tribunal must, in deciding an appeal, consider with due care all the material facts and record its findings on all contentions raised by the assessee and the Commissioner in the light of the evidence and the relevant law. The Tribunal was undoubtedly competent to disagree with the view of the Appellate Assistant Commissioner ; but in proceeding to do so, it had to act judicially, i.e., to consider all the evidence in favour of and against the, assessee. An order recorded on a review of only a part of the evidence and ignoring the remaining evidence could not be regarded as conclusively determinative of the question of fact raised before the Tribunal. It is for the income-tax authority to prove that a particular receipt is taxable if, however, the receipt is accepted and a certain amount is accepted as taxable, it could be added but it was not accepted by the assessee, however, that it had deliberately furnished inaccurate particulars or concealed any income. 8. In our opinion, the Tribunal has properly considered all the evidence in the instant case. In Rameshwar Prasad Bagla v. CIT [1973] 87 ITR 421 , this court again reiterated that it was for the Tribunal to decide questions of fact, and the High Court in a reference under section 66 of the Act, as at that time, could not go behind the Tribunals findings of fact. The High Court could only lay down the law applicable to the facts found by the Tribunal. The High Court in a reference under section 66 of the Act, as at that time, could, however, go into the question as to whether the conclusion of the Tribunal on a question of fact was based upon relevant evidence. If the High Court found that there was no such evidence to support the finding of fact by the Tribunal, those circumstances would give rise to a question of law and could be agitated in a reference. Here, in the instant case, that is not the position. This court again reiterated that it was also well-established that when a Tribunal acted on material which was irrelevant to the enquiry or considered material which was partly relevant and partly irrelevant or based on conjectures, surmises and suspicions and partly on evidence, then, in such a situation, an issue of law arose and the finding of the Tribunal could be interfered with. That is not the position here. In the instant case, it is not said that the Tribunal had acted on material which was irrelevant to the enquiry or considered material which was partly relevant and partly irrelevant or based its decision partly on conjectures, surmises and suspicions. The High Court was wrong in saying that proper weight had not been given to all the evidence and admissions made by the assessee. The High Court further observed that the time of admission was not noted by the Tribunal and this fact had not been properly appreciated by the Tribunal. That is also not correct. The Income-tax Officer had made additions during the assessment proceedings. In any event that would be appreciation of evidence in a certain way, unless in such misappreciation which amounted to non-appreciation, no question of law would arise. Non-appreciation may give rise to a question of law but not mere misappreciation, even if there be any, from a certain angle. Change of perspective in viewing a thing does not transform a question of fact into a question of lawIn the instant case, we are of the opinion that in preferring one view to another view of factual appreciation, the High Court transgressed the limits of its jurisdiction under the income-tax reference in answering the question of law | 1[ds]Having regard to the facts and circumstances of the case, he imposed a penalty of Rs. 70, 000In appeal, thex Appellate Tribunal was of the view that not much turned upon the fact that the assessee agreed to the additions of the amounts in the assessment. So far as the reliance placed upon Kanodias statement by the Inspecting Assistant Commissioner was concerned, it had no relevance or bearing to the facts of the assessment year in question. He was not the contractor employed by the assessee in the year of account. He came in only a later year. One Avinash Chand was the contractor in the year in question. He had specifically stated that be was responsible for shortages. He had also admitted that there was staff maintained by the mill at the centre at which he was the loading contractor. In fact, he had gone to the extent of stating as to what staff was maintained in that centre; there was a man in charge of the centre, a weighment clerk, a cane clerk and three to four chowkidars. He had also stated that they were not his employees. According to the Tribunal, in these circumstances, the assessee could very well have argued against the addition of the two sums, namely, Rs. 67, 500 and Rs. 21, 700. But the assessee, as we have noted, had agreed to the amounts being included. The Tribunal was of the view that the mere fact that the amounts were agreed to be taken into account by the assessee did not ipso facto indicate any criminality in its action to conceal any portion of the income. The Tribunal found that so far as Rs. 48, 500 was concerned in the inflation in the price of sugarcane, the previous history was against the assessee. It had agreed to similar additions in the earlier years6 and, the Tribunal noted. From the above facts, it was seen that the penalty was warranted in a similar amount for this year also, the Tribunal noted. Taking into consideration the fact that the sum involved against this year was Rs. 48, 500, the Tribunal considered that a smaller penalty was imposable. The Tribunal accordingly imposed a total penalty of Rs. 5, 000The High Court reiterated that the onus of proving concealment was on the Revenue because the proceedings for penalty were penal in character. In that view of the matter, the High Court was of the opinion that so far as Rs. 48, 500 was concerned, it was not proved that there was any deliberate concealment. So far as the other two amounts of Rs. 67, 500 and Rs. 21, 700 were concerned, it was contended that the High Court noted the history of the order of the Inspecting Assistant Commissioner and the circumstances of the case and the High Court was of the view that the Tribunal had not at all considered thet the value of the shortage was only Rs. 26, 429. According to the High Court, the Tribunal had brushed aside the fact that the assessee had agreed to the addition of this amount. According to the High Court, the Tribunal had not set aside the finding of the Inspecting Assistant Commissioner that the assessee surrendered the amount of Rs. 67, 500 when it was faced with facts which clearly established concealment. The assessee, according to the Inspecting Assistant Commissioner, had surrendered the amount only after thex Officer had conclusive evidence in his possession that the amount represented its income. In other words, what the High Court sought to state was that acceptance by the assessee was material to give proper weight to judge the criminality of the action which according to the High Court was not given. The High Court highlighted that, so far as Rs. 67, 500 was concerned, only on being faced with facts from which there could possibly be no escape from the inference that the amount represented his income, had the assessee agreed to its inclusion. The High Court was of the view that the Tribunal was in error in brushing aside consideration of these aspects while considering the question of concealmentIn respect of the addition of Rs. 21, 700, the Inspecting Assistant Commissioner had relied upon the statement of Kedar Nath Kanodia as also the fact that the assessee admitted that this item represented its income. The Tribunal did not place reliance upon the statement of Kedar Nath Kanodia. It, however, omitted to take into account the fact that the assessee had admitted that these items represented its income. The High Court was of the view that such admissions were made by the assessee but the Tribunal had not properly appreciated that aspect. Therefore, in respect of these two items, the High Court was of the view that the Tribunal was not right in holding that the assessee was not guilty of any concealment. So far as question No. 2 was concerned which dealt with Rs. 48, 500, the High Court confined itself to the disallowance in respect of purchase of cane. In so far as this question was answered in favour of the assessee and there is no challenge by the Revenue, it is not material any more. The High Court came to the conclusion that the finding of the Tribunal in respect of the concealment of Rs. 48, 500 was not justified in law.It was urged before us that as the second question which was in general form has been answered in favour of the assessee, the third question as reframed could not have been answered otherwise.We are unable to accept this contention. As evident from the discussion by the High Court, the High Court confined itself to the second question with regard to disallowance in respect of purchase of cane that amounted to Rs. 48, 500. So, therefore, it cannot be said that in view of the answer given to the second question, the third question was no longer open. The second question was confined to only Rs. 48, 500Whether there was justification for the answer given to the refrained third question or it was proper or not has to be judged on the basis as to how far the High Court in a reference could interfere with a finding of fact and transform the same into a question of law on the ground that there has beenn of all relevant facts. The law on this point is quite settledThe question was considered by this court exhaustively in Sree Meenakshi Mills Ltd. v. CIT [1957] 31 ITR 28 , where this court reiterated that findings on questions of pure fact arrived at by the Tribunal were not to be disturbed by the High Court on a reference unless it appeared that there was no evidence before the Tribunal upon which they, as reasonable men, could come to the conclusion to which they have come; and this was so, even though the High Court would on the evidence have come to a conclusion entirely different from that of the Tribunal. In other words, such a finding could be reviewed only on the ground that there was no evidence to support it or that it was perverseWhen a conclusion had been reached on an appreciation of a number of facts established by evidence, whether that was sound or not must be determined, not by considering the weight to be attached to each single fact in isolation, but by assessing the cumulative effect of all the facts in their setting as a whole. Where an ultimate finding on an issue was an inference to be drawn from the facts found, on the application of any principles of law, there would be a mixed question of law and fact, and the inference from the facts found was, in such a case, a question of law. But where the final determination of the issue equally with the finding or ascertainment of the basic facts did not involve the application of any principle of law, an inference from the facts could not be regarded as one of law. The proposition that an inference from facts was one of law was, therefore, correct in its application to mixed questions of law and fact, but not to pure questions of fact. In the case of pure questions of fact, an inference from the facts was as much a question of fact as the evidence of the facts. In the instant case, there is a finding of fact and unless it could be said that all the relevant facts had not been considered in a proper light, no question of law arises. In our opinion, the Tribunal took into account all the relevant facts. The Tribunal had been accused by the High Court of not taking into consideration the fact that the assessee had admitted these amounts in the assessment. To admit that there has been excess claim or disallowance is not the same thing as deliberate concealment or furnishing inaccurate particulars. At least in the background of the law as it stood at the relevant time, that was the position. There have been some changes subsequently which we have not noticed for the present purposeIn Omar Salay Mohamed Sait v. CIT [1959] 37 ITR 151 , this court held that thex Appellate Tribunal was ag tribunal and if it arrived at its own conclusions of fact after due consideration of the evidence before it, the court could not interfere. It was necessary, however, that every fact for and against the assessee must have been considered with due care and the Tribunal must have given its finding in a manner which would clearly indicate what were the questions which arose for determination, what was the evidence pro and contra in regard to each one of them and what were the findings reached on the evidence on record before it. The conclusions reached by the Tribunal should not be coloured by any irrelevant considerations or matters of prejudice and if there were any circumstances which required to be explained by the assessee, the assessee should be given an opportunity of doing so. In this case, the Tribunal had taken into consideration the fact that the assessee had admitted the additions as its income when faced withe in assessment proceedings. The High Court accused the Tribunal of not considering the time when the assessee admitted the additions.We find that it was duly considered by the Tribunal. We find that the assessee, admitted that these were the incomes of the assessee but that was not an admission that there was deliberate concealment. From agreeing to additions, it does not follow that the amount agreed to be added was concealed income. There may be hundred and one reasons for such admission, i.e., when the assessee realises the true position, it does not dispute certain disallowances but that does not absolve the Revenue from proving the mens rea of a quasicriminal offence. In Udhavdas Kewalram v. CIT [1967] 66 ITR 462 , the court held that thex Appellate Tribunal performed a judicial function under thex Act and it was invested with authority to determine finally all questions of fact. The Tribunal must, in deciding an appeal, consider with due care all the material facts and record its findings on all contentions raised by the assessee and the Commissioner in the light of the evidence and the relevant law. The Tribunal was undoubtedly competent to disagree with the view of the Appellate Assistant Commissioner ; but in proceeding to do so, it had to act judicially, i.e., to consider all the evidence in favour of and against the, assessee. An order recorded on a review of only a part of the evidence and ignoring the remaining evidence could not be regarded as conclusively determinative of the question of fact raised before the Tribunal. It is for thex authority to prove that a particular receipt is taxable if, however, the receipt is accepted and a certain amount is accepted as taxable, it could be added but it was not accepted by the assessee, however, that it had deliberately furnished inaccurate particulars or concealed any income.In our opinion, the Tribunal has properly considered all the evidence in the instant case. In Rameshwar Prasad Bagla v. CIT [1973] 87 ITR 421 , this court again reiterated that it was for the Tribunal to decide questions of fact, and the High Court in a reference under section 66 of the Act, as at that time, could not go behind the Tribunals findings of fact. The High Court could only lay down the law applicable to the facts found by the Tribunal. The High Court in a reference under section 66 of the Act, as at that time, could, however, go into the question as to whether the conclusion of the Tribunal on a question of fact was based upon relevant evidence. If the High Court found that there was no such evidence to support the finding of fact by the Tribunal, those circumstances would give rise to a question of law and could be agitated in a reference. Here, in the instant case, that is not the position. This court again reiterated that it was alsod that when a Tribunal acted on material which was irrelevant to the enquiry or considered material which was partly relevant and partly irrelevant or based on conjectures, surmises and suspicions and partly on evidence, then, in such a situation, an issue of law arose and the finding of the Tribunal could be interfered with. That is not the position here. In the instant case, it is not said that the Tribunal had acted on material which was irrelevant to the enquiry or considered material which was partly relevant and partly irrelevant or based its decision partly on conjectures, surmises and suspicions. The High Court was wrong in saying that proper weight had not been given to all the evidence and admissions made by the assessee. The High Court further observed that the time of admission was not noted by the Tribunal and this fact had not been properly appreciated by the Tribunal. That is also not correct. Thex Officer had made additions during the assessment proceedings. In any event that would be appreciation of evidence in a certain way, unless in such misappreciation which amounted to, no question of law would arise.n may give rise to a question of law but not mere misappreciation, even if there be any, from a certain angle. Change of perspective in viewing a thing does not transform a question of fact into a question of lawAccording to the Tribunal, in these circumstances, the assessee could very well have argued against the addition of the two sums, namely, Rs. 67, 500 and Rs. 21, 700. But the assessee, as we have noted, had agreed to the amounts being included. The Tribunal was of the view that the mere fact that the amounts were agreed to be taken into account by the assessee did not ipso facto indicate any criminality in its action to conceal any portion of the income. The Tribunal found that so far as Rs. 48, 500 was concerned in the inflation in the price of sugarcane, the previous history was against the assessee. It had agreed to similar additions in the earlier years6 and, the Tribunal noted. From the above facts, it was seen that the penalty was warranted in a similar amount for this year also, the Tribunal noted. Taking into consideration the fact that the sum involved against this year was Rs. 48, 500, the Tribunal considered that a smaller penalty was imposable. The Tribunal accordingly imposed a total penalty of Rs. 5, 000The High Court reiterated that the onus of proving concealment was on the Revenue because the proceedings for penalty were penal in character. In that view of the matter, the High Court was of the opinion that so far as Rs. 48, 500 was concerned, it was not proved that there was any deliberate concealment. So far as the other two amounts of Rs. 67, 500 and Rs. 21, 700 were concerned, it was contended that the High Court noted the history of the order of the Inspecting Assistant Commissioner and the circumstances of the case and the High Court was of the view that the Tribunal had not at all considered thet the value of the shortage was only Rs. 26, 429. According to the High Court, the Tribunal had brushed aside the fact that the assessee had agreed to the addition of this amount. According to the High Court, the Tribunal had not set aside the finding of the Inspecting Assistant Commissioner that the assessee surrendered the amount of Rs. 67, 500 when it was faced with facts which clearly established concealment. The assessee, according to the Inspecting Assistant Commissioner, had surrendered the amount only after thex Officer had conclusive evidence in his possession that the amount represented its income. In other words, what the High Court sought to state was that acceptance by the assessee was material to give proper weight to judge the criminality of the action which according to the High Court was not given. The High Court highlighted that, so far as Rs. 67, 500 was concerned, only on being faced with facts from which there could possibly be no escape from the inference that the amount represented his income, had the assessee agreed to its inclusion. The High Court was of the view that the Tribunal was in error in brushing aside consideration of these aspects while considering the question of concealmentIn respect of the addition of Rs. 21, 700, the Inspecting Assistant Commissioner had relied upon the statement of Kedar Nath Kanodia as also the fact that the assessee admitted that this item represented its income. The Tribunal did not place reliance upon the statement of Kedar Nath Kanodia. It, however, omitted to take into account the fact that the assessee had admitted that these items represented its income. The High Court was of the view that such admissions were made by the assessee but the Tribunal had not properly appreciated that aspect. Therefore, in respect of these two items, the High Court was of the view that the Tribunal was not right in holding that the assessee was not guilty of any concealment. So far as question No. 2 was concerned which dealt with Rs. 48, 500, the High Court confined itself to the disallowance in respect of purchase of cane. In so far as this question was answered in favour of the assessee and there is no challenge by the Revenue, it is not material any more. The High Court came to the conclusion that the finding of the Tribunal in respect of the concealment of Rs. 48, 500 was not justified in lawWe are unable to accept this contention. As evident from the discussion by the High Court, the High Court confined itself to the second question with regard to disallowance in respect of purchase of cane that amounted to Rs. 48, 500. So, therefore, it cannot be said that in view of the answer given to the second question, the third question was no longer open. The second question was confined to only Rs. 48, 500Whether there was justification for the answer given to the refrained third question or it was proper or not has to be judged on the basis as to how far the High Court in a reference could interfere with a finding of fact and transform the same into a question of law on the ground that there has beenn of all relevant facts. The law on this point is quite settledThe question was considered by this court exhaustively in Sree Meenakshi Mills Ltd. v. CIT [1957] 31 ITR 28 , where this court reiterated that findings on questions of pure fact arrived at by the Tribunal were not to be disturbed by the High Court on a reference unless it appeared that there was no evidence before the Tribunal upon which they, as reasonable men, could come to the conclusion to which they have come; and this was so, even though the High Court would on the evidence have come to a conclusion entirely different from that of the Tribunal. In other words, such a finding could be reviewed only on the ground that there was no evidence to support it or that it was perversen a conclusion had been reached on an appreciation of a number of facts established by evidence, whether that was sound or not must be determined, not by considering the weight to be attached to each single fact in isolation, but by assessing the cumulative effect of all the facts in their setting as a whole. Where an ultimate finding on an issue was an inference to be drawn from the facts found, on the application of any principles of law, there would be a mixed question of law and fact, and the inference from the facts found was, in such a case, a question of law. But where the final determination of the issue equally with the finding or ascertainment of the basic facts did not involve the application of any principle of law, an inference from the facts could not be regarded as one of law. The proposition that an inference from facts was one of law was, therefore, correct in its application to mixed questions of law and fact, but not to pure questions of fact. In the case of pure questions of fact, an inference from the facts was as much a question of fact as the evidence of the facts. In the instant case, there is a finding of fact and unless it could be said that all the relevant facts had not been considered in a proper light, no question of law arises. In our opinion, the Tribunal took into account all the relevant facts. The Tribunal had been accused by the High Court of not taking into consideration the fact that the assessee had admitted these amounts in the assessment. To admit that there has been excess claim or disallowance is not the same thing as deliberate concealment or furnishing inaccurate particulars. At least in the background of the law as it stood at the relevant time, that was the position. There have been some changes subsequently which we have not noticed for the present purposeIn Omar Salay Mohamed Sait v. CIT [1959] 37 ITR 151 , this court held that thex Appellate Tribunal was ag tribunal and if it arrived at its own conclusions of fact after due consideration of the evidence before it, the court could not interfere. It was necessary, however, that every fact for and against the assessee must have been considered with due care and the Tribunal must have given its finding in a manner which would clearly indicate what were the questions which arose for determination, what was the evidence pro and contra in regard to each one of them and what were the findings reached on the evidence on record before it. The conclusions reached by the Tribunal should not be coloured by any irrelevant considerations or matters of prejudice and if there were any circumstances which required to be explained by the assessee, the assessee should be given an opportunity of doing so. In this case, the Tribunal had taken into consideration the fact that the assessee had admitted the additions as its income when faced withe in assessment proceedings. The High Court accused the Tribunal of not considering the time when the assessee admitted the additionsWe find that it was duly considered by the Tribunal. We find that the assessee, admitted that these were the incomes of the assessee but that was not an admission that there was deliberate concealment. From agreeing to additions, it does not follow that the amount agreed to be added was concealed income. There may be hundred and one reasons for such admission, i.e., when the assessee realises the true position, it does not dispute certain disallowances but that does not absolve the Revenue from proving the mens rea of a quasicriminal offenceIn our opinion, the Tribunal has properly considered all the evidence in the instant caseHere, in the instant case, that is not the position. This court again reiterated that it was alsod that when a Tribunal acted on material which was irrelevant to the enquiry or considered material which was partly relevant and partly irrelevant or based on conjectures, surmises and suspicions and partly on evidence, then, in such a situation, an issue of law arose and the finding of the Tribunal could be interfered with. That is not the position here. In the instant case, it is not said that the Tribunal had acted on material which was irrelevant to the enquiry or considered material which was partly relevant and partly irrelevant or based its decision partly on conjectures, surmises and suspicions. The High Court was wrong in saying that proper weight had not been given to all the evidence and admissions made by the assessee. The High Court further observed that the time of admission was not noted by the Tribunal and this fact had not been properly appreciated by the Tribunal. That is also not correct. Thex Officer had made additions during the assessment proceedings. In any event that would be appreciation of evidence in a certain way, unless in such misappreciation which amounted to, no question of law would arise.n may give rise to a question of law but not mere misappreciation, even if there be any, from a certain angle. Change of perspective in viewing a thing does not transform a question of fact into a question ofn the instant case, we are of the opinion that in preferring one view to another view of factual appreciation, the High Court transgressed the limits of its jurisdiction under thex reference in answering the question of law | 1 | 4,312 | 4,726 | ### 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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is not the same thing as deliberate concealment or furnishing inaccurate particulars. At least in the background of the law as it stood at the relevant time, that was the position. There have been some changes subsequently which we have not noticed for the present purposeIn Omar Salay Mohamed Sait v. CIT [1959] 37 ITR 151 , this court held that the Income-tax Appellate Tribunal was a fact-finding tribunal and if it arrived at its own conclusions of fact after due consideration of the evidence before it, the court could not interfere. It was necessary, however, that every fact for and against the assessee must have been considered with due care and the Tribunal must have given its finding in a manner which would clearly indicate what were the questions which arose for determination, what was the evidence pro and contra in regard to each one of them and what were the findings reached on the evidence on record before it. The conclusions reached by the Tribunal should not be coloured by any irrelevant considerations or matters of prejudice and if there were any circumstances which required to be explained by the assessee, the assessee should be given an opportunity of doing so. In this case, the Tribunal had taken into consideration the fact that the assessee had admitted the additions as its income when faced with non-disclosure in assessment proceedings. The High Court accused the Tribunal of not considering the time when the assessee admitted the additions. 7. We find that it was duly considered by the Tribunal. We find that the assessee, admitted that these were the incomes of the assessee but that was not an admission that there was deliberate concealment. From agreeing to additions, it does not follow that the amount agreed to be added was concealed income. There may be hundred and one reasons for such admission, i.e., when the assessee realises the true position, it does not dispute certain disallowances but that does not absolve the Revenue from proving the mens rea of a quasicriminal offence. In Udhavdas Kewalram v. CIT [1967] 66 ITR 462 , the court held that the Income-tax Appellate Tribunal performed a judicial function under the Income-tax Act and it was invested with authority to determine finally all questions of fact. The Tribunal must, in deciding an appeal, consider with due care all the material facts and record its findings on all contentions raised by the assessee and the Commissioner in the light of the evidence and the relevant law. The Tribunal was undoubtedly competent to disagree with the view of the Appellate Assistant Commissioner ; but in proceeding to do so, it had to act judicially, i.e., to consider all the evidence in favour of and against the, assessee. An order recorded on a review of only a part of the evidence and ignoring the remaining evidence could not be regarded as conclusively determinative of the question of fact raised before the Tribunal. It is for the income-tax authority to prove that a particular receipt is taxable if, however, the receipt is accepted and a certain amount is accepted as taxable, it could be added but it was not accepted by the assessee, however, that it had deliberately furnished inaccurate particulars or concealed any income. 8. In our opinion, the Tribunal has properly considered all the evidence in the instant case. In Rameshwar Prasad Bagla v. CIT [1973] 87 ITR 421 , this court again reiterated that it was for the Tribunal to decide questions of fact, and the High Court in a reference under section 66 of the Act, as at that time, could not go behind the Tribunals findings of fact. The High Court could only lay down the law applicable to the facts found by the Tribunal. The High Court in a reference under section 66 of the Act, as at that time, could, however, go into the question as to whether the conclusion of the Tribunal on a question of fact was based upon relevant evidence. If the High Court found that there was no such evidence to support the finding of fact by the Tribunal, those circumstances would give rise to a question of law and could be agitated in a reference. Here, in the instant case, that is not the position. This court again reiterated that it was also well-established that when a Tribunal acted on material which was irrelevant to the enquiry or considered material which was partly relevant and partly irrelevant or based on conjectures, surmises and suspicions and partly on evidence, then, in such a situation, an issue of law arose and the finding of the Tribunal could be interfered with. That is not the position here. In the instant case, it is not said that the Tribunal had acted on material which was irrelevant to the enquiry or considered material which was partly relevant and partly irrelevant or based its decision partly on conjectures, surmises and suspicions. The High Court was wrong in saying that proper weight had not been given to all the evidence and admissions made by the assessee. The High Court further observed that the time of admission was not noted by the Tribunal and this fact had not been properly appreciated by the Tribunal. That is also not correct. The Income-tax Officer had made additions during the assessment proceedings. In any event that would be appreciation of evidence in a certain way, unless in such misappreciation which amounted to non-appreciation, no question of law would arise. Non-appreciation may give rise to a question of law but not mere misappreciation, even if there be any, from a certain angle. Change of perspective in viewing a thing does not transform a question of fact into a question of lawIn the instant case, we are of the opinion that in preferring one view to another view of factual appreciation, the High Court transgressed the limits of its jurisdiction under the income-tax reference in answering the question of law
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unless it appeared that there was no evidence before the Tribunal upon which they, as reasonable men, could come to the conclusion to which they have come; and this was so, even though the High Court would on the evidence have come to a conclusion entirely different from that of the Tribunal. In other words, such a finding could be reviewed only on the ground that there was no evidence to support it or that it was perversen a conclusion had been reached on an appreciation of a number of facts established by evidence, whether that was sound or not must be determined, not by considering the weight to be attached to each single fact in isolation, but by assessing the cumulative effect of all the facts in their setting as a whole. Where an ultimate finding on an issue was an inference to be drawn from the facts found, on the application of any principles of law, there would be a mixed question of law and fact, and the inference from the facts found was, in such a case, a question of law. But where the final determination of the issue equally with the finding or ascertainment of the basic facts did not involve the application of any principle of law, an inference from the facts could not be regarded as one of law. The proposition that an inference from facts was one of law was, therefore, correct in its application to mixed questions of law and fact, but not to pure questions of fact. In the case of pure questions of fact, an inference from the facts was as much a question of fact as the evidence of the facts. In the instant case, there is a finding of fact and unless it could be said that all the relevant facts had not been considered in a proper light, no question of law arises. In our opinion, the Tribunal took into account all the relevant facts. The Tribunal had been accused by the High Court of not taking into consideration the fact that the assessee had admitted these amounts in the assessment. To admit that there has been excess claim or disallowance is not the same thing as deliberate concealment or furnishing inaccurate particulars. At least in the background of the law as it stood at the relevant time, that was the position. There have been some changes subsequently which we have not noticed for the present purposeIn Omar Salay Mohamed Sait v. CIT [1959] 37 ITR 151 , this court held that thex Appellate Tribunal was ag tribunal and if it arrived at its own conclusions of fact after due consideration of the evidence before it, the court could not interfere. It was necessary, however, that every fact for and against the assessee must have been considered with due care and the Tribunal must have given its finding in a manner which would clearly indicate what were the questions which arose for determination, what was the evidence pro and contra in regard to each one of them and what were the findings reached on the evidence on record before it. The conclusions reached by the Tribunal should not be coloured by any irrelevant considerations or matters of prejudice and if there were any circumstances which required to be explained by the assessee, the assessee should be given an opportunity of doing so. In this case, the Tribunal had taken into consideration the fact that the assessee had admitted the additions as its income when faced withe in assessment proceedings. The High Court accused the Tribunal of not considering the time when the assessee admitted the additionsWe find that it was duly considered by the Tribunal. We find that the assessee, admitted that these were the incomes of the assessee but that was not an admission that there was deliberate concealment. From agreeing to additions, it does not follow that the amount agreed to be added was concealed income. There may be hundred and one reasons for such admission, i.e., when the assessee realises the true position, it does not dispute certain disallowances but that does not absolve the Revenue from proving the mens rea of a quasicriminal offenceIn our opinion, the Tribunal has properly considered all the evidence in the instant caseHere, in the instant case, that is not the position. This court again reiterated that it was alsod that when a Tribunal acted on material which was irrelevant to the enquiry or considered material which was partly relevant and partly irrelevant or based on conjectures, surmises and suspicions and partly on evidence, then, in such a situation, an issue of law arose and the finding of the Tribunal could be interfered with. That is not the position here. In the instant case, it is not said that the Tribunal had acted on material which was irrelevant to the enquiry or considered material which was partly relevant and partly irrelevant or based its decision partly on conjectures, surmises and suspicions. The High Court was wrong in saying that proper weight had not been given to all the evidence and admissions made by the assessee. The High Court further observed that the time of admission was not noted by the Tribunal and this fact had not been properly appreciated by the Tribunal. That is also not correct. Thex Officer had made additions during the assessment proceedings. In any event that would be appreciation of evidence in a certain way, unless in such misappreciation which amounted to, no question of law would arise.n may give rise to a question of law but not mere misappreciation, even if there be any, from a certain angle. Change of perspective in viewing a thing does not transform a question of fact into a question ofn the instant case, we are of the opinion that in preferring one view to another view of factual appreciation, the High Court transgressed the limits of its jurisdiction under thex reference in answering the question of law
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UDAY SHANKAR RAO Vs. AMARENDERA KUMAR DUTTA | notice that the provisions of the Essential Commodities Act, the Negotiable Instruments Act, the Employees Provident Funds and Miscellaneous Provisions Act, 1952 etc. have been created such specifically creates an offence of criminal breach of trust in respect of the amount deducted from the employees by the company. In terms of the explanations appended to Section 405 of the Penal Code, a legal fiction has been created to the effect that the employer shall be deemed to have committed an offence of criminal breach of trust. Whereas a person in charge of the affairs of the company and in control thereof has been made vicariously liable for the offence committed by the company along with the company but even in a case falling Under Section 406 of the Penal Code vicarious liability has been held to be not extendable to the Directors or officers of the company. (emphasis supplied) 2. The position in the instant case is no different. The Respondent-complainant filed a complaint before the Chief Judicial Magistrate at Lakhimpur alleging that a certain policy which the Respondent intended to secure from SBI Life Insurance Company Limited was meant to be a Unit Plus I policy for a sum of Rs. 1 lakh. Instead of a Unit Plus I policy, however, the company was alleged to have fabricated a proposal form for a Unit plus 11 policy involving payment of a sum of Rs. 1 lakh p.a. for a period of five years to earn a cumulative benefit of Rs. 5 lakhs or so. The Chief Judicial Magistrate examined the complaint but came to the conclusion that the same did not make out a prima facie case against the Appellant herein and accordingly dismissed the complaint by his order dated 18.05.2007. Aggrieved by the order passed by the Magistrate, the complainant filed a revision petition before the Additional Sessions Judge, Lakhimpur, which revision petition was allowed and the matter remanded back to the Chief Judicial Magistrate for a fresh order in accordance with law. The Addl. Sessions Judge while disposing of the revision petition took the view that the ingredients of forgery of the signatures of the complainant by the accused persons were made out from the complaint and that the material placed on record prime facie called for initiation of proceedings against the accused persons for offences punishable Under Sections 468 and 471 of the Indian Penal Code. 3. The Appellants questioned the correctness of the order passed by the Addl. Sessions Judge before the High Court at Guwahati in criminal Revision Petition No. 317 of 2007 which was dismissed by the High Court in terms of an order dated 14.11.2007. The CJM had by that time issued summons to the Petitioner for offences punishable Under Sections 468 and 471 of IPC. The Petitioners were, therefore, left with no option but to file a petition Under Sections 482, Code of Criminal Procedure before the High Court challenging the summoning order passed by the CJM. The High Court has, by the order impugned before us, dismissed the said petition and affirmed the order passed by the CJM. 3A. Appearing for the Appellants, Mr. Rakesh Khanna, learned senior Counsel urged that the view taken by the courts below was erroneous. It was submitted that in the absence of any provision making the Appellants liable for prosecution on the principle of vicarious liability the proceedings launched against them were an abuse of the process of law, especially when there was no allegation against the Petitioner that they had forged or fabricated any part of the record relevant to the policy issued in favour of the Respondent-company. It was argued that just because there was an allegation that a forgery had taken place without the complaint naming the person who had committed the same, was no reason for the complainant to prosecute the Managing Director and the Vice-President of the company which was a Government company and a subsidiary of the State Bank of India having no interest and deriving no benefit from the creation of forged documents like a policy. He urged that the High Court ought to have quashed the proceedings instituted by the complainant-Respondent herein and inasmuch as it failed to do so, it committed an error that needs to be corrected. There is, in our view, considerable merit in the submission made by Mr. Khanna. As noticed above, the question is whether any vicarious criminal liability arises in the facts and circumstances of the case. No such liability, however, arises under the IPC nor has the learned Counsel for the Respondent-complainant been able to refer to any other statute which could possibly expose the Managing Director or Vice President of the company to prosecution for the alleged act of forgery by any employee/official of the company assuming that a forgery such as the one alleged has indeed taken place. There is no specific allegation in the complaint to suggest that it was the Petitioner or any one of them who was actually involved in the fabrication of the policy. The Additional Sessions Judge and so also the CJM, therefore, fell in error in holding that there was a reasonable basis for prosecuting the Petitioners for the commission of offence Under Sections 468 and 470, IPC. That apart, the complainant has been suitably compensated by the consumer forum who has according to Mr. Khanna gone into the question of refund of the amount paid by the complainant and awarded compensation in a sum of Rs. 50,000/- to the complainant. Mr. Khanna submits on instructions that a sum of Rs. 2,64,370/- representing refund of the principal amount of Rs. 1 lakh paid by the complainant besides Rs. 50,000/- towards compensation awarded by the Consumer Commission together with interest @ 12% have already been paid to the complainant. That being so, we see no reason why criminal proceedings initiated by the Respondent should continue against the Appellants against whom there are no allegations of forgery or other misdemeanor culpable in law. | 1[ds]The legal position on the subject is, in our opinion, fairly well settled by the decisions of this Court that have authoritatively declared that except in situations where the Statute itself creates a vicarious liability and makes prosecution on that basis legally permissible, the law does not generally provide for such prosecution. This Court in Maksud Saiyed Vs. State of Gujarat and Others, first examined the question of vicarious liability in criminal cases and summed up the legal position in the following words:Where a jurisdiction is exercised on a complaint petition filed in terms of Section 156(3) or Section 200 of the Code of Criminal Procedure, the Magistrate is required to apply his mind. The Penal Code does not contain any provision for attaching vicarious liability on the part of the Managing Director or the Directors of the Company when the accused is the Company. The learned Magistrate failed to pose unto himself the correct question viz. as to whether the complaint petition, even if give face value and taken to be correct in its entirely, would lead to the conclusion that the Respondents herein were personally liable for any offence. The Bank is a body corporate. Vicarious liability of the Managing Director and Director would arise provided any provision exists in that behalf in the statute. Statutes indisputably must contain provision fixing such vicarious liabilities. Even for the said purpose, it is obligatory on the part of the complainant to make requisite allegations which would attract the provisions constituting vicarious liability.(emphasis supplied)The ratio in Maksud Saiyeds case (supra) was then followed by this Court in S.K. Alagh Vs. State of U.P. and Others, , wherein too the question was whether the Managing Direction of a Company or its General Manager could be prosecuted for criminal breach of trust simply because they were in those positions without there being any specific allegation of any individual act of omission or commission on their part. In paras 16, 19 and 20 of the decision this Court reiterated the legal position and said:16. The Penal Code, save and except some provisions specifically providing therefore, does not contemplate any vicarious liability on the part of a party who is not charged directly for commission of an offence.17 to 18 xxx xxx xxx19. As, admittedly, drafts were drawn in the name of the Company, even if the Appellant was its Managing Director, he cannot be said to have committed an offence Under Section 406 of the Penal Code. If and when a statute contemplates creation of such a legal fiction, it provides specifically therefore. In absence of any provision laid down under the statute, a Director of a Company or an employee cannot be held to be vicariously liable for any offence committed by the Company itself.20. We may, in this regard, notice that the provisions of the Essential Commodities Act, the Negotiable Instruments Act, the Employees Provident Funds and Miscellaneous Provisions Act, 1952 etc. have been created such specifically creates an offence of criminal breach of trust in respect of the amount deducted from the employees by the company. In terms of the explanations appended to Section 405 of the Penal Code, a legal fiction has been created to the effect that the employer shall be deemed to have committed an offence of criminal breach of trust. Whereas a person in charge of the affairs of the company and in control thereof has been made vicariously liable for the offence committed by the company along with the company but even in a case falling Under Section 406 of the Penal Code vicarious liability has been held to be not extendable to the Directors or officers of the company.(emphasis supplied)2. The position in the instant case is no different.There is, in our view, considerable merit in the submission made by Mr. Khanna. As noticed above, the question is whether any vicarious criminal liability arises in the facts and circumstances of the case. No such liability, however, arises under the IPC nor has the learned Counsel for the Respondent-complainant been able to refer to any other statute which could possibly expose the Managing Director or Vice President of the company to prosecution for the alleged act of forgery by any employee/official of the company assuming that a forgery such as the one alleged has indeed taken place. There is no specific allegation in the complaint to suggest that it was the Petitioner or any one of them who was actually involved in the fabrication of the policy. The Additional Sessions Judge and so also the CJM, therefore, fell in error in holding that there was a reasonable basis for prosecuting the Petitioners for the commission of offence Under Sections 468 and 470, IPC. That apart, the complainant has been suitably compensated by the consumer forum who has according to Mr. Khanna gone into the question of refund of the amount paid by the complainant and awarded compensation in a sum of Rs. 50,000/- to the complainant. Mr. Khanna submits on instructions that a sum of Rs. 2,64,370/- representing refund of the principal amount of Rs. 1 lakh paid by the complainant besides Rs. 50,000/- towards compensation awarded by the Consumer Commission together with interest @ 12% have already been paid to the complainant. That being so, we see no reason why criminal proceedings initiated by the Respondent should continue against the Appellants against whom there are no allegations of forgery or other misdemeanor culpable in law. | 1 | 1,655 | 1,000 | ### 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:
notice that the provisions of the Essential Commodities Act, the Negotiable Instruments Act, the Employees Provident Funds and Miscellaneous Provisions Act, 1952 etc. have been created such specifically creates an offence of criminal breach of trust in respect of the amount deducted from the employees by the company. In terms of the explanations appended to Section 405 of the Penal Code, a legal fiction has been created to the effect that the employer shall be deemed to have committed an offence of criminal breach of trust. Whereas a person in charge of the affairs of the company and in control thereof has been made vicariously liable for the offence committed by the company along with the company but even in a case falling Under Section 406 of the Penal Code vicarious liability has been held to be not extendable to the Directors or officers of the company. (emphasis supplied) 2. The position in the instant case is no different. The Respondent-complainant filed a complaint before the Chief Judicial Magistrate at Lakhimpur alleging that a certain policy which the Respondent intended to secure from SBI Life Insurance Company Limited was meant to be a Unit Plus I policy for a sum of Rs. 1 lakh. Instead of a Unit Plus I policy, however, the company was alleged to have fabricated a proposal form for a Unit plus 11 policy involving payment of a sum of Rs. 1 lakh p.a. for a period of five years to earn a cumulative benefit of Rs. 5 lakhs or so. The Chief Judicial Magistrate examined the complaint but came to the conclusion that the same did not make out a prima facie case against the Appellant herein and accordingly dismissed the complaint by his order dated 18.05.2007. Aggrieved by the order passed by the Magistrate, the complainant filed a revision petition before the Additional Sessions Judge, Lakhimpur, which revision petition was allowed and the matter remanded back to the Chief Judicial Magistrate for a fresh order in accordance with law. The Addl. Sessions Judge while disposing of the revision petition took the view that the ingredients of forgery of the signatures of the complainant by the accused persons were made out from the complaint and that the material placed on record prime facie called for initiation of proceedings against the accused persons for offences punishable Under Sections 468 and 471 of the Indian Penal Code. 3. The Appellants questioned the correctness of the order passed by the Addl. Sessions Judge before the High Court at Guwahati in criminal Revision Petition No. 317 of 2007 which was dismissed by the High Court in terms of an order dated 14.11.2007. The CJM had by that time issued summons to the Petitioner for offences punishable Under Sections 468 and 471 of IPC. The Petitioners were, therefore, left with no option but to file a petition Under Sections 482, Code of Criminal Procedure before the High Court challenging the summoning order passed by the CJM. The High Court has, by the order impugned before us, dismissed the said petition and affirmed the order passed by the CJM. 3A. Appearing for the Appellants, Mr. Rakesh Khanna, learned senior Counsel urged that the view taken by the courts below was erroneous. It was submitted that in the absence of any provision making the Appellants liable for prosecution on the principle of vicarious liability the proceedings launched against them were an abuse of the process of law, especially when there was no allegation against the Petitioner that they had forged or fabricated any part of the record relevant to the policy issued in favour of the Respondent-company. It was argued that just because there was an allegation that a forgery had taken place without the complaint naming the person who had committed the same, was no reason for the complainant to prosecute the Managing Director and the Vice-President of the company which was a Government company and a subsidiary of the State Bank of India having no interest and deriving no benefit from the creation of forged documents like a policy. He urged that the High Court ought to have quashed the proceedings instituted by the complainant-Respondent herein and inasmuch as it failed to do so, it committed an error that needs to be corrected. There is, in our view, considerable merit in the submission made by Mr. Khanna. As noticed above, the question is whether any vicarious criminal liability arises in the facts and circumstances of the case. No such liability, however, arises under the IPC nor has the learned Counsel for the Respondent-complainant been able to refer to any other statute which could possibly expose the Managing Director or Vice President of the company to prosecution for the alleged act of forgery by any employee/official of the company assuming that a forgery such as the one alleged has indeed taken place. There is no specific allegation in the complaint to suggest that it was the Petitioner or any one of them who was actually involved in the fabrication of the policy. The Additional Sessions Judge and so also the CJM, therefore, fell in error in holding that there was a reasonable basis for prosecuting the Petitioners for the commission of offence Under Sections 468 and 470, IPC. That apart, the complainant has been suitably compensated by the consumer forum who has according to Mr. Khanna gone into the question of refund of the amount paid by the complainant and awarded compensation in a sum of Rs. 50,000/- to the complainant. Mr. Khanna submits on instructions that a sum of Rs. 2,64,370/- representing refund of the principal amount of Rs. 1 lakh paid by the complainant besides Rs. 50,000/- towards compensation awarded by the Consumer Commission together with interest @ 12% have already been paid to the complainant. That being so, we see no reason why criminal proceedings initiated by the Respondent should continue against the Appellants against whom there are no allegations of forgery or other misdemeanor culpable in law.
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The legal position on the subject is, in our opinion, fairly well settled by the decisions of this Court that have authoritatively declared that except in situations where the Statute itself creates a vicarious liability and makes prosecution on that basis legally permissible, the law does not generally provide for such prosecution. This Court in Maksud Saiyed Vs. State of Gujarat and Others, first examined the question of vicarious liability in criminal cases and summed up the legal position in the following words:Where a jurisdiction is exercised on a complaint petition filed in terms of Section 156(3) or Section 200 of the Code of Criminal Procedure, the Magistrate is required to apply his mind. The Penal Code does not contain any provision for attaching vicarious liability on the part of the Managing Director or the Directors of the Company when the accused is the Company. The learned Magistrate failed to pose unto himself the correct question viz. as to whether the complaint petition, even if give face value and taken to be correct in its entirely, would lead to the conclusion that the Respondents herein were personally liable for any offence. The Bank is a body corporate. Vicarious liability of the Managing Director and Director would arise provided any provision exists in that behalf in the statute. Statutes indisputably must contain provision fixing such vicarious liabilities. Even for the said purpose, it is obligatory on the part of the complainant to make requisite allegations which would attract the provisions constituting vicarious liability.(emphasis supplied)The ratio in Maksud Saiyeds case (supra) was then followed by this Court in S.K. Alagh Vs. State of U.P. and Others, , wherein too the question was whether the Managing Direction of a Company or its General Manager could be prosecuted for criminal breach of trust simply because they were in those positions without there being any specific allegation of any individual act of omission or commission on their part. In paras 16, 19 and 20 of the decision this Court reiterated the legal position and said:16. The Penal Code, save and except some provisions specifically providing therefore, does not contemplate any vicarious liability on the part of a party who is not charged directly for commission of an offence.17 to 18 xxx xxx xxx19. As, admittedly, drafts were drawn in the name of the Company, even if the Appellant was its Managing Director, he cannot be said to have committed an offence Under Section 406 of the Penal Code. If and when a statute contemplates creation of such a legal fiction, it provides specifically therefore. In absence of any provision laid down under the statute, a Director of a Company or an employee cannot be held to be vicariously liable for any offence committed by the Company itself.20. We may, in this regard, notice that the provisions of the Essential Commodities Act, the Negotiable Instruments Act, the Employees Provident Funds and Miscellaneous Provisions Act, 1952 etc. have been created such specifically creates an offence of criminal breach of trust in respect of the amount deducted from the employees by the company. In terms of the explanations appended to Section 405 of the Penal Code, a legal fiction has been created to the effect that the employer shall be deemed to have committed an offence of criminal breach of trust. Whereas a person in charge of the affairs of the company and in control thereof has been made vicariously liable for the offence committed by the company along with the company but even in a case falling Under Section 406 of the Penal Code vicarious liability has been held to be not extendable to the Directors or officers of the company.(emphasis supplied)2. The position in the instant case is no different.There is, in our view, considerable merit in the submission made by Mr. Khanna. As noticed above, the question is whether any vicarious criminal liability arises in the facts and circumstances of the case. No such liability, however, arises under the IPC nor has the learned Counsel for the Respondent-complainant been able to refer to any other statute which could possibly expose the Managing Director or Vice President of the company to prosecution for the alleged act of forgery by any employee/official of the company assuming that a forgery such as the one alleged has indeed taken place. There is no specific allegation in the complaint to suggest that it was the Petitioner or any one of them who was actually involved in the fabrication of the policy. The Additional Sessions Judge and so also the CJM, therefore, fell in error in holding that there was a reasonable basis for prosecuting the Petitioners for the commission of offence Under Sections 468 and 470, IPC. That apart, the complainant has been suitably compensated by the consumer forum who has according to Mr. Khanna gone into the question of refund of the amount paid by the complainant and awarded compensation in a sum of Rs. 50,000/- to the complainant. Mr. Khanna submits on instructions that a sum of Rs. 2,64,370/- representing refund of the principal amount of Rs. 1 lakh paid by the complainant besides Rs. 50,000/- towards compensation awarded by the Consumer Commission together with interest @ 12% have already been paid to the complainant. That being so, we see no reason why criminal proceedings initiated by the Respondent should continue against the Appellants against whom there are no allegations of forgery or other misdemeanor culpable in law.
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Lachhman Dass Vs. Santokh Singh | reassess and reappreciate the evidence unless the statute expressly confers on in that power. That limitation is implicit in the concept of revision. In this view of the matter we are supported by a decision of this Court in State of Kerala v. K.M. Charia Abdullah and Company, A.I.R. 1965 SC 1585 . 8. This Court in the case of Hari Shankar v. Rao Girdhari Lal Chowdhury, A.I.R. 1963 SC 698 had an occasion to consider the question of distinction between an appeal and a revision and Hidayatullah, J. (as he then was) speaking for the Court observed at p. 939 of the report as follows :- "The distinction between an appeal and revision is a real one. A right of appeal carries with it a right of rehearing on law as well as fact, unless the statute conferring the right to appeal limits the rehearing in some way as, we find, has been done in second appeals arising under the Code of Civil Procedure. The power to hear a revision is generally given to a superior court so that it may satisfy itself that a particular case has been decided according to law." 9. In the case of State of Kerala v. K.M. Charia Abdullah and Company (supra) this Court expressed the view that when the Legislature confers a right to appeal in one case and discretionary remedy of revision in another, it may be deemed to have created two jurisdictions different in scope and content. Again in the case of Neta Ram v. Jiwan Lal, A.I.R. 1963 SC 499, Hidayatullah, J. (as he then was) speaking for the Court observed that the revisional jurisdiction of the High Court does no include the power to reverse concurrent findings, without showing how those findings are erroneous. 10. In the present case sub-section (6) of Section 15 of the Act confers revisional power on the High Court for the purpose of satisfying itself with regard to the legality or propriety of an order or proceedings taken under the Act and empowers the High Court to pass such order in relation thereto as it may deem fit. The High Court will be justified in interfering with the order in revision if it finds that the order of the appellate authority suffers from a material impropriety or illegality. From the use of the expression "Legality or propriety of such order or proceedings" occurring in sub-section (6) of Section 15 of the Act, it appears that no doubt the revisional power of the High Court under the Act is wider than the power under Section 115 of the Code of Civil Procedure which is confined to jurisdiction, but it is also not so wide as to embrace within its fold all the attributes and characteristics of an appeal and disturb a concurrent finding of fact properly arrived at without recording a finding that such conclusions are perverse or based on no evidence or based on a superficial and perfunctory approach. If the High Court proceeds to interfere with such concurrent findings of fact ignoring the aforementioned well-recognised principles, it would amount to equating the revisional powers of the High Court as powers of a regular appeal frustrating the fine distinction between an appeal and a revision. That being so unless the High Court comes to the conclusion that the concurrent findings recorded by the two courts below are wholly perverse and erroneous which manifestly appear to be unjust there should be no interference. In the present case the two courts below have thoroughly examined and appreciated the parties evidence and have recorded a definite finding, entirely based on the evidence on record that the respondent-tenant has ceased to occupy the demised premises since after September 1981 and had, in fact, along with his wife and family started living in House No. 351, Ward No. 7, Karnal, having been acquired by him in the name of his wife.11. It may be noticed that the learned Single Judge has himself stated in the impugned judgment that it is not a matter of dispute that both the accommodation i.e. the demised premises and the house acquired by the tenant- respondent, in the name of his wife, have almost the same capacity yet the learned Single Judge took the view that the house acquired by the respondent was not reasonably sufficient for his requirements. If both the houses are almost of the same capacity it is difficult to accept the finding that the house acquired by the respondent is not reasonably sufficient for his requirements. The observation of the learned Single Judge that the respondents family consists of about 14 persons is neither here nor there, as admittedly, all those 14 persons are not living at Karnal with the respondent and, particularly, in the demised premises or in the house acquired by the respondent. The learned Single Judge has himself further observed in the impugned judgment that "though it is also in evidence that some of the sons are either posted or working outside Karnal yet it is patent that they keep on visiting the petitioner". Thus, the learned Single Judge included the occasional visitors of the respondent also to be the members of the family which by no stretch of imagination could be accepted to be a sound reasoning, to set aside the concurrent findings of fact. It is also not the case of respondent-tenant that 14 persons of his family are living with him in the house. On the contrary from the evidence it is clear that at the most the respondents family consists of six members including his wife who have been living in the demised premises and all of them have shifted in the house acquired by the respondent in the name of his wife. This fact is sufficiently established from the oral and documentary evidence on record. But surprisingly enough the learned Single Judge ignored this part of the evidence and disturbed concurrent findings for no good reasons, resulting in miscarriage of justice. | 1[ds]In the present case as discussed earlier the Rent Controller passed the order of eviction against the respondent on the ground mentioned under Section 13 of the Act against which the respondent preferred an appeal under sub-section (2) of Section 15 of the Act and the appellate authority affirmed the order of eviction passed by the Rent Controller. Here it may be noted that the Act does not provide a second appeal against the order passed in appeal by the Appellate Authority under sub-section (2) of Section 15. The Act, however, under sub-section (6) of Section 15 makes a provision for revision to the High Court against any order passed or proceedings taken under the Act. Thus, the Legislature has provided for a single appeal against the order passed by the Rent Controlling Authority and no further appeal has been provided under the Act. The Legislature has, however, made a provision for discretionary remedy of revision which is indicative of the fact that the Legislature has created two jurisdictions different from each other in scope and content in the form of an appeal and revision. That being so the two jurisdictions - one under an appeal and the other under revision - cannot be said to be one and the same but distinct and different in the ambit and scope. Precisely stated, an appeal is a continuation of a suit or proceedings wherein the entire proceedings are again left open for consideration by the appellate authorities which has the power to review the entire evidence subject, of course, to the prescribed statutory limitations. But in the case of revision whatever powers the revisional authority may have, it has no power to reassess and reappreciate the evidence unless the statute expressly confers on in thatIn the present case sub-section (6) of Section 15 of the Act confers revisional power on the High Court for the purpose of satisfying itself with regard to the legality or propriety of an order or proceedings taken under the Act and empowers the High Court to pass such order in relation thereto as it may deem fit. The High Court will be justified in interfering with the order in revision if it finds that the order of the appellate authority suffers from a material impropriety or illegality. From the use of the expression "Legality or propriety of such order or proceedings" occurring in sub-section (6) of Section 15 of the Act, it appears that no doubt the revisional power of the High Court under the Act is wider than the power under Section 115 of the Code of Civil Procedure which is confined to jurisdiction, but it is also not so wide as to embrace within its fold all the attributes and characteristics of an appeal and disturb a concurrent finding of fact properly arrived at without recording a finding that such conclusions are perverse or based on no evidence or based on a superficial and perfunctory approach. If the High Court proceeds to interfere with such concurrent findings of fact ignoring the aforementioned well-recognised principles, it would amount to equating the revisional powers of the High Court as powers of a regular appeal frustrating the fine distinction between an appeal and a revision. That being so unless the High Court comes to the conclusion that the concurrent findings recorded by the two courts below are wholly perverse and erroneous which manifestly appear to be unjust there should be no interference. In the present case the two courts below have thoroughly examined and appreciated the parties evidence and have recorded a definite finding, entirely based on the evidence on record that the respondent-tenant has ceased to occupy the demised premises since after September 1981 and had, in fact, along with his wife and family started living in House No. 351, Ward No. 7, Karnal, having been acquired by him in the name of his wife.11. It may be noticed that the learned Single Judge has himself stated in the impugned judgment that it is not a matter of dispute that both the accommodation i.e. the demised premises and the house acquired by the tenant- respondent, in the name of his wife, have almost the same capacity yet the learned Single Judge took the view that the house acquired by the respondent was not reasonably sufficient for his requirements. If both the houses are almost of the same capacity it is difficult to accept the finding that the house acquired by the respondent is not reasonably sufficient for his requirements. The observation of the learned Single Judge that the respondents family consists of about 14 persons is neither here nor there, as admittedly, all those 14 persons are not living at Karnal with the respondent and, particularly, in the demised premises or in the house acquired by the respondent. The learned Single Judge has himself further observed in the impugned judgment that "though it is also in evidence that some of the sons are either posted or working outside Karnal yet it is patent that they keep on visiting the petitioner". Thus, the learned Single Judge included the occasional visitors of the respondent also to be the members of the family which by no stretch of imagination could be accepted to be a sound reasoning, to set aside the concurrent findings of fact. It is also not the case of respondent-tenant that 14 persons of his family are living with him in the house. On the contrary from the evidence it is clear that at the most the respondents family consists of six members including his wife who have been living in the demised premises and all of them have shifted in the house acquired by the respondent in the name of his wife. This fact is sufficiently established from the oral and documentary evidence on record. But surprisingly enough the learned Single Judge ignored this part of the evidence and disturbed concurrent findings for no good reasons, resulting in miscarriage of justice. | 1 | 2,658 | 1,067 | ### 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:
reassess and reappreciate the evidence unless the statute expressly confers on in that power. That limitation is implicit in the concept of revision. In this view of the matter we are supported by a decision of this Court in State of Kerala v. K.M. Charia Abdullah and Company, A.I.R. 1965 SC 1585 . 8. This Court in the case of Hari Shankar v. Rao Girdhari Lal Chowdhury, A.I.R. 1963 SC 698 had an occasion to consider the question of distinction between an appeal and a revision and Hidayatullah, J. (as he then was) speaking for the Court observed at p. 939 of the report as follows :- "The distinction between an appeal and revision is a real one. A right of appeal carries with it a right of rehearing on law as well as fact, unless the statute conferring the right to appeal limits the rehearing in some way as, we find, has been done in second appeals arising under the Code of Civil Procedure. The power to hear a revision is generally given to a superior court so that it may satisfy itself that a particular case has been decided according to law." 9. In the case of State of Kerala v. K.M. Charia Abdullah and Company (supra) this Court expressed the view that when the Legislature confers a right to appeal in one case and discretionary remedy of revision in another, it may be deemed to have created two jurisdictions different in scope and content. Again in the case of Neta Ram v. Jiwan Lal, A.I.R. 1963 SC 499, Hidayatullah, J. (as he then was) speaking for the Court observed that the revisional jurisdiction of the High Court does no include the power to reverse concurrent findings, without showing how those findings are erroneous. 10. In the present case sub-section (6) of Section 15 of the Act confers revisional power on the High Court for the purpose of satisfying itself with regard to the legality or propriety of an order or proceedings taken under the Act and empowers the High Court to pass such order in relation thereto as it may deem fit. The High Court will be justified in interfering with the order in revision if it finds that the order of the appellate authority suffers from a material impropriety or illegality. From the use of the expression "Legality or propriety of such order or proceedings" occurring in sub-section (6) of Section 15 of the Act, it appears that no doubt the revisional power of the High Court under the Act is wider than the power under Section 115 of the Code of Civil Procedure which is confined to jurisdiction, but it is also not so wide as to embrace within its fold all the attributes and characteristics of an appeal and disturb a concurrent finding of fact properly arrived at without recording a finding that such conclusions are perverse or based on no evidence or based on a superficial and perfunctory approach. If the High Court proceeds to interfere with such concurrent findings of fact ignoring the aforementioned well-recognised principles, it would amount to equating the revisional powers of the High Court as powers of a regular appeal frustrating the fine distinction between an appeal and a revision. That being so unless the High Court comes to the conclusion that the concurrent findings recorded by the two courts below are wholly perverse and erroneous which manifestly appear to be unjust there should be no interference. In the present case the two courts below have thoroughly examined and appreciated the parties evidence and have recorded a definite finding, entirely based on the evidence on record that the respondent-tenant has ceased to occupy the demised premises since after September 1981 and had, in fact, along with his wife and family started living in House No. 351, Ward No. 7, Karnal, having been acquired by him in the name of his wife.11. It may be noticed that the learned Single Judge has himself stated in the impugned judgment that it is not a matter of dispute that both the accommodation i.e. the demised premises and the house acquired by the tenant- respondent, in the name of his wife, have almost the same capacity yet the learned Single Judge took the view that the house acquired by the respondent was not reasonably sufficient for his requirements. If both the houses are almost of the same capacity it is difficult to accept the finding that the house acquired by the respondent is not reasonably sufficient for his requirements. The observation of the learned Single Judge that the respondents family consists of about 14 persons is neither here nor there, as admittedly, all those 14 persons are not living at Karnal with the respondent and, particularly, in the demised premises or in the house acquired by the respondent. The learned Single Judge has himself further observed in the impugned judgment that "though it is also in evidence that some of the sons are either posted or working outside Karnal yet it is patent that they keep on visiting the petitioner". Thus, the learned Single Judge included the occasional visitors of the respondent also to be the members of the family which by no stretch of imagination could be accepted to be a sound reasoning, to set aside the concurrent findings of fact. It is also not the case of respondent-tenant that 14 persons of his family are living with him in the house. On the contrary from the evidence it is clear that at the most the respondents family consists of six members including his wife who have been living in the demised premises and all of them have shifted in the house acquired by the respondent in the name of his wife. This fact is sufficiently established from the oral and documentary evidence on record. But surprisingly enough the learned Single Judge ignored this part of the evidence and disturbed concurrent findings for no good reasons, resulting in miscarriage of justice.
### Response:
1
### Explanation:
In the present case as discussed earlier the Rent Controller passed the order of eviction against the respondent on the ground mentioned under Section 13 of the Act against which the respondent preferred an appeal under sub-section (2) of Section 15 of the Act and the appellate authority affirmed the order of eviction passed by the Rent Controller. Here it may be noted that the Act does not provide a second appeal against the order passed in appeal by the Appellate Authority under sub-section (2) of Section 15. The Act, however, under sub-section (6) of Section 15 makes a provision for revision to the High Court against any order passed or proceedings taken under the Act. Thus, the Legislature has provided for a single appeal against the order passed by the Rent Controlling Authority and no further appeal has been provided under the Act. The Legislature has, however, made a provision for discretionary remedy of revision which is indicative of the fact that the Legislature has created two jurisdictions different from each other in scope and content in the form of an appeal and revision. That being so the two jurisdictions - one under an appeal and the other under revision - cannot be said to be one and the same but distinct and different in the ambit and scope. Precisely stated, an appeal is a continuation of a suit or proceedings wherein the entire proceedings are again left open for consideration by the appellate authorities which has the power to review the entire evidence subject, of course, to the prescribed statutory limitations. But in the case of revision whatever powers the revisional authority may have, it has no power to reassess and reappreciate the evidence unless the statute expressly confers on in thatIn the present case sub-section (6) of Section 15 of the Act confers revisional power on the High Court for the purpose of satisfying itself with regard to the legality or propriety of an order or proceedings taken under the Act and empowers the High Court to pass such order in relation thereto as it may deem fit. The High Court will be justified in interfering with the order in revision if it finds that the order of the appellate authority suffers from a material impropriety or illegality. From the use of the expression "Legality or propriety of such order or proceedings" occurring in sub-section (6) of Section 15 of the Act, it appears that no doubt the revisional power of the High Court under the Act is wider than the power under Section 115 of the Code of Civil Procedure which is confined to jurisdiction, but it is also not so wide as to embrace within its fold all the attributes and characteristics of an appeal and disturb a concurrent finding of fact properly arrived at without recording a finding that such conclusions are perverse or based on no evidence or based on a superficial and perfunctory approach. If the High Court proceeds to interfere with such concurrent findings of fact ignoring the aforementioned well-recognised principles, it would amount to equating the revisional powers of the High Court as powers of a regular appeal frustrating the fine distinction between an appeal and a revision. That being so unless the High Court comes to the conclusion that the concurrent findings recorded by the two courts below are wholly perverse and erroneous which manifestly appear to be unjust there should be no interference. In the present case the two courts below have thoroughly examined and appreciated the parties evidence and have recorded a definite finding, entirely based on the evidence on record that the respondent-tenant has ceased to occupy the demised premises since after September 1981 and had, in fact, along with his wife and family started living in House No. 351, Ward No. 7, Karnal, having been acquired by him in the name of his wife.11. It may be noticed that the learned Single Judge has himself stated in the impugned judgment that it is not a matter of dispute that both the accommodation i.e. the demised premises and the house acquired by the tenant- respondent, in the name of his wife, have almost the same capacity yet the learned Single Judge took the view that the house acquired by the respondent was not reasonably sufficient for his requirements. If both the houses are almost of the same capacity it is difficult to accept the finding that the house acquired by the respondent is not reasonably sufficient for his requirements. The observation of the learned Single Judge that the respondents family consists of about 14 persons is neither here nor there, as admittedly, all those 14 persons are not living at Karnal with the respondent and, particularly, in the demised premises or in the house acquired by the respondent. The learned Single Judge has himself further observed in the impugned judgment that "though it is also in evidence that some of the sons are either posted or working outside Karnal yet it is patent that they keep on visiting the petitioner". Thus, the learned Single Judge included the occasional visitors of the respondent also to be the members of the family which by no stretch of imagination could be accepted to be a sound reasoning, to set aside the concurrent findings of fact. It is also not the case of respondent-tenant that 14 persons of his family are living with him in the house. On the contrary from the evidence it is clear that at the most the respondents family consists of six members including his wife who have been living in the demised premises and all of them have shifted in the house acquired by the respondent in the name of his wife. This fact is sufficiently established from the oral and documentary evidence on record. But surprisingly enough the learned Single Judge ignored this part of the evidence and disturbed concurrent findings for no good reasons, resulting in miscarriage of justice.
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Md. Sajjad @ Raju @ Salim Vs. State Of West Bengal | place in the presence of those prosecution witnesses nor any special circumstances had occurred which would invite their attention so as to register the features or special attributes of the concerned accused. Their chance meeting, as alleged, was in the night and was only for some fleeting moments. 16. In Subash v. State of U.P., 1987 (3) SCC 331 , the aspects of delay as well as absence of any special features for identification and the effect thereof were considered by this court in paragraphs 8 and 9 as under:- "8.Apart from this infirmity we further find that Shiv Shankar was not put up for test identification parade promptly. The identification parade has been held three weeks after his arrest and no explanation has been offered for the delay in holding the test identification parade. There is, therefore, room for doubt as to whether the delay in holding the identification parade was in order to enable the identifying witnesses to see him in the police lock-up or in the jail premises and make a note of his features.9.Over and above all these things there remains the fact that a sufficiently long interval of time had elapsed between the date of occurrence when the witnesses had seen Shiv Shankar for a few minutes and the date of the test identification parade. It is, no doubt, true that all the three witnesses had correctly identified Shiv Shankar at the identification parade but it has to be borne in mind that nearly 4 months had elapsed during the interval. It is relevant to mention here that neither in Exhibit Kha-1 nor in their statements during investigation, the eyewitnesses have given any descriptive particulars of Shiv Shankar. While deposing before the Sessions Judge they have stated that Shiv Shankar was a tall person and had "sallow" complexion. If it is on account of these features the witnesses were able to identify Shiv Shankar at the identification parade, they would have certainly mentioned about them at the earliest point of time because their memory would have been fresh then. Thus in the absence of any descriptive particulars of Shiv Shankar in Ex. Kha-1 or in the statements of witnesses during investigation, it will not be safe and proper to act upon the identification of Shiv Shankar by the three witnesses at the identification parade and hold that he was one of the assailants of Ram Babu. As pointed out in Muthuswami v. State of Madras, AIR 1954 SC 4 =1954 Cri LJ 236 where an identification parade was held about 2½ months after the occurrence it would not be safe to place reliance on the identification of the accused by the eyewitnesses. In another case Mohd. Abdul Hafeez v. State of A.P., 1983(1) R.C.R.(Criminal) 141 : AIR 1983 SC 367 =(1983) 1 SCC 143. It was held that where the witnesses had not given any description of the accused in the first information report, their identification of the accused at the sessions trial cannot be safely accepted by the court for awarding conviction to the accused. In the present case there was a long interval of nearly 4 months before the test identification parade was held and it is difficult to accept that in spite of this interval of time the witnesses were able to have a clear image of the accused in their minds and identify him correctly at the identification parade." 17. Similarly the issue of delay weighed with this court in Musheer Khan v. State of M.P., 2010(1) R.C.R.(Criminal) 817 : 2010(1) Recent Apex Judgments (R.A.J.) 491 : 2010 (2) SCC 748 in discarding the evidence regarding test identification as under: "8.Insofar as the identification of A-5 is concerned that has taken place at a very delayed stage, namely, his identification took place on 24-1-2001 and the incident is of 29-11-2000, even though A-5 was arrested on 22-12-2000. There is no explanation why his identification parade was held on 24-1-2001 which is after a gap of over a month from the date of arrest and after about 3 months from the date of the incident. No reliance ought to have been placed by the courts below or the High Court on such delayed TI parade for which there is no explanation by the prosecution." 18. In the instant case none of the witnesses had disclosed any features for identification which would lend some corroboration. The identification parade itself was held 25 days after the arrest. Their chance meeting was also in the night without there being any special occasion for them to notice the features of any of the accused which would then register in their minds so as to enable them to identify them on a future date. The chance meeting was also for few minutes. In the circumstances, in our considered view such identification simplicitor cannot form the basis or be taken as the fulcrum for the entire case of prosecution. The suspicion expressed by PW 8 Saraswati Singh was also not enough to record the finding of guilt against the appellant. We therefore grant benefit of doubt to the appellant and hold that the prosecution has failed to establish its case against the appellant.19. Mr. Mrinal Kanti Mandal, learned Advocate is right in submitting that in certain cases this Court had granted benefit even to a non-appealing accused. In Bijoy Singh v. State of Bihar, 2002 (8) SCC 147, this court observed that if on evaluation of the case, a conclusion is reached that no conviction of any accused was possible the benefit of that decision must be extended to the similarly situated co-accused even though he had not challenged the order by way of the appeal. To similar effect was the dictum of this court in Suresh Chaudhary v. State of Bihar, 2003(2) R.C.R.(Criminal) 125 : 2003 (4) SCC 128 and in Pawan Kumar . State of Haryana, 2003 (11) SCC 241 and in Mohinder Singh and Anr. v. State of Punjab and Others., 2004 (12) SCC 311. | 1[ds]15. In the case in hand, apart from the fact that there was delay in holding the Test Identification Parade, one striking feature is that none of the concerned prosecution witnesses had given any identification marks or disclosed special features or attributes of any of those four persons in general and the accused in particular. Further, no incident or crime had actually taken place in the presence of those prosecution witnesses nor any special circumstances had occurred which would invite their attention so as to register the features or special attributes of the concerned accused. Their chance meeting, as alleged, was in the night and was only for some fleeting moments.In the instant case none of the witnesses had disclosed any features for identification which would lend some corroboration. The identification parade itself was held 25 days after the arrest. Their chance meeting was also in the night without there being any special occasion for them to notice the features of any of the accused which would then register in their minds so as to enable them to identify them on a future date. The chance meeting was also for few minutes. In the circumstances, in our considered view such identification simplicitor cannot form the basis or be taken as the fulcrum for the entire case of prosecution. The suspicion expressed by PW 8 Saraswati Singh was also not enough to record the finding of guilt against the appellant. We therefore grant benefit of doubt to the appellant and hold that the prosecution has failed to establish its case against the appellant.19. Mr. Mrinal Kanti Mandal, learned Advocate is right in submitting that in certain cases this Court had granted benefit even to a non-appealing accused. In Bijoy Singh v. State of Bihar, 2002 (8) SCC 147, this court observed that if on evaluation of the case, a conclusion is reached that no conviction of any accused was possible the benefit of that decision must be extended to the similarly situated co-accused even though he had not challenged the order by way of the appeal. To similar effect was the dictum of this court in Suresh Chaudhary v. State of Bihar, 2003(2) R.C.R.(Criminal) 125 : 2003 (4) SCC 128 and in Pawan Kumar . State of Haryana, 2003 (11) SCC 241 and in Mohinder Singh and Anr. v. State of Punjab and Others., 2004 (12) SCC 311. | 1 | 4,317 | 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:
place in the presence of those prosecution witnesses nor any special circumstances had occurred which would invite their attention so as to register the features or special attributes of the concerned accused. Their chance meeting, as alleged, was in the night and was only for some fleeting moments. 16. In Subash v. State of U.P., 1987 (3) SCC 331 , the aspects of delay as well as absence of any special features for identification and the effect thereof were considered by this court in paragraphs 8 and 9 as under:- "8.Apart from this infirmity we further find that Shiv Shankar was not put up for test identification parade promptly. The identification parade has been held three weeks after his arrest and no explanation has been offered for the delay in holding the test identification parade. There is, therefore, room for doubt as to whether the delay in holding the identification parade was in order to enable the identifying witnesses to see him in the police lock-up or in the jail premises and make a note of his features.9.Over and above all these things there remains the fact that a sufficiently long interval of time had elapsed between the date of occurrence when the witnesses had seen Shiv Shankar for a few minutes and the date of the test identification parade. It is, no doubt, true that all the three witnesses had correctly identified Shiv Shankar at the identification parade but it has to be borne in mind that nearly 4 months had elapsed during the interval. It is relevant to mention here that neither in Exhibit Kha-1 nor in their statements during investigation, the eyewitnesses have given any descriptive particulars of Shiv Shankar. While deposing before the Sessions Judge they have stated that Shiv Shankar was a tall person and had "sallow" complexion. If it is on account of these features the witnesses were able to identify Shiv Shankar at the identification parade, they would have certainly mentioned about them at the earliest point of time because their memory would have been fresh then. Thus in the absence of any descriptive particulars of Shiv Shankar in Ex. Kha-1 or in the statements of witnesses during investigation, it will not be safe and proper to act upon the identification of Shiv Shankar by the three witnesses at the identification parade and hold that he was one of the assailants of Ram Babu. As pointed out in Muthuswami v. State of Madras, AIR 1954 SC 4 =1954 Cri LJ 236 where an identification parade was held about 2½ months after the occurrence it would not be safe to place reliance on the identification of the accused by the eyewitnesses. In another case Mohd. Abdul Hafeez v. State of A.P., 1983(1) R.C.R.(Criminal) 141 : AIR 1983 SC 367 =(1983) 1 SCC 143. It was held that where the witnesses had not given any description of the accused in the first information report, their identification of the accused at the sessions trial cannot be safely accepted by the court for awarding conviction to the accused. In the present case there was a long interval of nearly 4 months before the test identification parade was held and it is difficult to accept that in spite of this interval of time the witnesses were able to have a clear image of the accused in their minds and identify him correctly at the identification parade." 17. Similarly the issue of delay weighed with this court in Musheer Khan v. State of M.P., 2010(1) R.C.R.(Criminal) 817 : 2010(1) Recent Apex Judgments (R.A.J.) 491 : 2010 (2) SCC 748 in discarding the evidence regarding test identification as under: "8.Insofar as the identification of A-5 is concerned that has taken place at a very delayed stage, namely, his identification took place on 24-1-2001 and the incident is of 29-11-2000, even though A-5 was arrested on 22-12-2000. There is no explanation why his identification parade was held on 24-1-2001 which is after a gap of over a month from the date of arrest and after about 3 months from the date of the incident. No reliance ought to have been placed by the courts below or the High Court on such delayed TI parade for which there is no explanation by the prosecution." 18. In the instant case none of the witnesses had disclosed any features for identification which would lend some corroboration. The identification parade itself was held 25 days after the arrest. Their chance meeting was also in the night without there being any special occasion for them to notice the features of any of the accused which would then register in their minds so as to enable them to identify them on a future date. The chance meeting was also for few minutes. In the circumstances, in our considered view such identification simplicitor cannot form the basis or be taken as the fulcrum for the entire case of prosecution. The suspicion expressed by PW 8 Saraswati Singh was also not enough to record the finding of guilt against the appellant. We therefore grant benefit of doubt to the appellant and hold that the prosecution has failed to establish its case against the appellant.19. Mr. Mrinal Kanti Mandal, learned Advocate is right in submitting that in certain cases this Court had granted benefit even to a non-appealing accused. In Bijoy Singh v. State of Bihar, 2002 (8) SCC 147, this court observed that if on evaluation of the case, a conclusion is reached that no conviction of any accused was possible the benefit of that decision must be extended to the similarly situated co-accused even though he had not challenged the order by way of the appeal. To similar effect was the dictum of this court in Suresh Chaudhary v. State of Bihar, 2003(2) R.C.R.(Criminal) 125 : 2003 (4) SCC 128 and in Pawan Kumar . State of Haryana, 2003 (11) SCC 241 and in Mohinder Singh and Anr. v. State of Punjab and Others., 2004 (12) SCC 311.
### Response:
1
### Explanation:
15. In the case in hand, apart from the fact that there was delay in holding the Test Identification Parade, one striking feature is that none of the concerned prosecution witnesses had given any identification marks or disclosed special features or attributes of any of those four persons in general and the accused in particular. Further, no incident or crime had actually taken place in the presence of those prosecution witnesses nor any special circumstances had occurred which would invite their attention so as to register the features or special attributes of the concerned accused. Their chance meeting, as alleged, was in the night and was only for some fleeting moments.In the instant case none of the witnesses had disclosed any features for identification which would lend some corroboration. The identification parade itself was held 25 days after the arrest. Their chance meeting was also in the night without there being any special occasion for them to notice the features of any of the accused which would then register in their minds so as to enable them to identify them on a future date. The chance meeting was also for few minutes. In the circumstances, in our considered view such identification simplicitor cannot form the basis or be taken as the fulcrum for the entire case of prosecution. The suspicion expressed by PW 8 Saraswati Singh was also not enough to record the finding of guilt against the appellant. We therefore grant benefit of doubt to the appellant and hold that the prosecution has failed to establish its case against the appellant.19. Mr. Mrinal Kanti Mandal, learned Advocate is right in submitting that in certain cases this Court had granted benefit even to a non-appealing accused. In Bijoy Singh v. State of Bihar, 2002 (8) SCC 147, this court observed that if on evaluation of the case, a conclusion is reached that no conviction of any accused was possible the benefit of that decision must be extended to the similarly situated co-accused even though he had not challenged the order by way of the appeal. To similar effect was the dictum of this court in Suresh Chaudhary v. State of Bihar, 2003(2) R.C.R.(Criminal) 125 : 2003 (4) SCC 128 and in Pawan Kumar . State of Haryana, 2003 (11) SCC 241 and in Mohinder Singh and Anr. v. State of Punjab and Others., 2004 (12) SCC 311.
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Ram Krishna Ramnath Agarwalof Kamptee Vs. Secretary, Municipal Committee,Kamptee.Union Of India And | a duty levied on a manufacturer or producer in respect of the commodity manufactured or produced. It is a tax on goods not on sales or the proceeds of sale of goods. Here, again, their Lordships find themselves in complete accord with the reasoning and conclusions of the Federal Court in B. Paidanna case, 1942 F. C. R.90. The two taxes, the one levied on a manufacturer in respect of his goods, the other on a vendor in respect of his sales, may, as is there pointed out, in one sense overlap. But in law there is no overlapping. The taxes are separate and distinct imposts. If in fact they overlap, that may be because the taxing authority, imposing a duty of excise, finds it convenient to impose that duty at the moment when the exercisable article leaves the factory or workshop for the first time on the occasion of its sale. But that method of collecting the tax is an accident of administration; it is not of the essence of the duty of excise, which is attracted by the manufacture itself. That this is so is clearly exemplified in those excepted cases in which the Provincial, not the Federal, legislature has power to impose a duty of excise. In such cases, there appears to be no reason why the Provincial legislature should not impose a duty of excise in respect of the commodity manufactured and then a tax on first or other sales of the same commodity. Whether or not such a course is followed appears to be merely a matter of administrative convenience. So, by parity of reasoning, may the Federal Legislature impose a duty of excise on the manufacture of excisable goods and the Provincial legislature impose a tax on the sale of the same goods when manufactured."(11) This discussion clearly shows that the relevant question is what is the nature of the tax. Excise duty is a tax on manufactured goods. Octrai duty is a tax levied on the entry of goods within a particular area. Under the Excise Act, tobacco becomes excisable goods within the meaning of Item 9 in the Schedule. The subsequent use of such manufactured goods in making different articles only affects the rate of tax. Therefore, tobacco becomes subject to excise duty when it reaches the stage of manufacture mentioned in Item 9 of the Schedule to the Excise Act. Even before it is converted into bidis or any other article mentioned in the entry it has become excisable goods and liable to pay excise duty. The levy of such duty is therefore not in conflict with the levy of an impost on the entry of the goods within a certain area.(12) It was argued that under the rules framed by the Government under the Central Excises and Salt Act, 1944, Government retained control over the movement of the goods from the beginning till the end. This arguments is not of assistance in determining the nature of the octroi tax. As Government has to collect excise duty and the rate of duty, varies in respect of different shapes in which the excisable goods are ultimately converted, there is nothing unnatural in the Government keeping a control and note of the articles till the manufactured article becomes a commodity, and is mixed up with the commodities used by the people at large. The argument that Entry 49 in List II being in conflict with Entry 45 in List I of Sch. VII, Constitution Act, Entry 49 should be read as "for consumption or use, except for manufacture of goods", in our opinion is unsound. In the first place, the approach to the question itself is wrong. When a particular legislation falls within the exact words of an entry in the Provincial List, under S. 100 it is valid and no question of reconciliation arises. A similar argument advanced in regard to a supposed conflict between Entry 19 of List I and Entry 31 of List II was rejected by us in case No. 27 of 1949. (Miss Kishore Shetty v. The King). 1949 F.C.R. 650 In the present case, if the question of the validity of the Provincial legislation arises, on the interpretation of Entry 49 in List II it appears that the answer must be in favour of the validity of the legislation. The decision in Administrator, Lahore Municipality v. Daulat Ram, 1942 F. C. R. 31, does not help the appellant because in that case Entry 47 in List I is only, salt". A comparison with Entry 45 in List shows distinctly that Entry 45 is limited to excise duty and is not wide enough to cover tobacoo or other goods generally for all purposes of legislation. The observations in that case therefore are not helpful to the appellant.(13) On the second part of the contention the appellant can succeed only if he establishes that the provisions of the Excise Act are contrary to the levy and recovery of duty under the Provincial Act of 1922. There is no express provision in the Excise Act contrary to the provisions of the Municipal Act. Unless, therefore, it is necessarily implied under the Excise Act, the levy of the octroi duty under the Municipal Act continues to be valid. On this point again the appellants argument is that the levy of a duty at any stage of the manufacturer of bidis out of tobacco would be the levy of the excise duty and therefore those provisions were contrary to the provisions permitting the levy of the octroi duty.(14) We have already discussed and rejected in the first part of the judgment this contention. It is wrong to think that two independent imposts arising from two different sets of circumstances were not permitted in law. In our opinion, therefore, there is nothing in the Excise Act to make its provisions contrary to the provisions of S. 66 (1) (e), Central Provinces Municipalities Act or to the levy of octroi duty under the same. | 0[ds]the leavy of such tax by the Provincial Government was a subject which was within the exclusive legislative power of the Centre by reason of such tax being included in List I of Sch.7, the levy of such tax under the Provincial legislation continued to be valid until the Central Legislature passed an Act the provisions whereof were contrary to the provisions of Provincial legislature or to the leavy of a tax under the Provincial Act. Examining next the contentions of the appellant it seems clear that octroi duty as levied by the respondent comes within the exact wording of Entry 49 of List II of Sch. 7, Constitution Act. Prima facie, therefore, there is no reason to consider the levy of the octroi duty under the Provincial legislation invalid.The error underlying the argument of the appellant is the assumption that any impost of tax from the time tobacco came into existence till the same was converted into bidis is necessarily excise duty.The two taxes, the one levied on a manufacturer in respect of his goods, the other on a vendor in respect of his sales, may, as is there pointed out, in one sense overlap. But in law there is no overlapping. The taxes are separate and distinct imposts. If in fact they overlap, that may be because the taxing authority, imposing a duty of excise, finds it convenient to impose that duty at the moment when the exercisable article leaves the factory or workshop for the first time on the occasion of its sale. But that method of collecting the tax is an accident of administration; it is not of the essence of the duty of excise, which is attracted by the manufacture itself. That this is so is clearly exemplified in those excepted cases in which the Provincial, not the Federal, legislature has power to impose a duty of excise. In such cases, there appears to be no reason why the Provincial legislature should not impose a duty of excise in respect of the commodity manufactured and then a tax on first or other sales of the same commodity. Whether or not such a course is followed appears to be merely a matter of administrative convenience. So, by parity of reasoning, may the Federal Legislature impose a duty of excise on the manufacture of excisable goods and the Provincial legislature impose a tax on the sale of the same goods when manufactured.Excise duty is a tax on manufactured goods. Octrai duty is a tax levied on the entry of goods within a particular area. Under the Excise Act, tobacco becomes excisable goods within the meaning of Item 9 in the Schedule. The subsequent use of such manufactured goods in making different articles only affects the rate of tax. Therefore, tobacco becomes subject to excise duty when it reaches the stage of manufacture mentioned in Item 9 of the Schedule to the Excise Act. Even before it is converted into bidis or any other article mentioned in the entry it has become excisable goods and liable to pay excise duty. The levy of such duty is therefore not in conflict with the levy of an impost on the entry of the goods within a certainIt was argued that under the rules framed by the Government under the Central Excises and Salt Act, 1944, Government retained control over the movement of the goods from the beginning till the end.This arguments is not of assistance in determining the nature of the octroi tax. As Government has to collect excise duty and the rate of duty, varies in respect of different shapes in which the excisable goods are ultimately converted, there is nothing unnatural in the Government keeping a control and note of the articles till the manufactured article becomes a commodity, and is mixed up with the commodities used by the people at large. The argument that Entry 49 in List II being in conflict with Entry 45 in List I of Sch. VII, Constitution Act, Entry 49 should be read as "for consumption or use, except for manufacture of goods", in our opinion is unsound. In the first place, the approach to the question itself is wrong. When a particular legislation falls within the exact words of an entry in the Provincial List, under S. 100 it is valid and no question of reconciliation arises. A similar argument advanced in regard to a supposed conflict between Entry 19 of List I and Entry 31 of List II was rejected by us in case No. 27 of 1949. (Miss Kishore Shetty v. The King). 1949 F.C.R. 650 In the present case, if the question of the validity of the Provincial legislation arises, on the interpretation of Entry 49 in List II it appears that the answer must be in favour of the validity of the legislation. The decision in Administrator, Lahore Municipality v. Daulat Ram, 1942 F. C. R. 31, does not help the appellant because in that case Entry 47 in List I is only, salt". A comparison with Entry 45 in List shows distinctly that Entry 45 is limited to excise duty and is not wide enough to cover tobacoo or other goods generally for all purposes of legislation. The observations in that case therefore are not helpful to the appellant.There is no express provision in the Excise Act contrary to the provisions of the Municipal Act. Unless, therefore, it is necessarily implied under the Excise Act, the levy of the octroi duty under the Municipal Act continues to be valid. On this point again the appellants argument is that the levy of a duty at any stage of the manufacturer of bidis out of tobacco would be the levy of the excise duty and therefore those provisions were contrary to the provisions permitting the levy of the octroi duty.We have already discussed and rejected in the first part of the judgment this contention. It is wrong to think that two independent imposts arising from two different sets of circumstances were not permitted in law. In our opinion, therefore, there is nothing in the Excise Act to make its provisions contrary to the provisions of S. 66 (1) (e), Central Provinces Municipalities Act or to the levy of octroi duty under the | 0 | 3,578 | 1,135 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
### Input:
a duty levied on a manufacturer or producer in respect of the commodity manufactured or produced. It is a tax on goods not on sales or the proceeds of sale of goods. Here, again, their Lordships find themselves in complete accord with the reasoning and conclusions of the Federal Court in B. Paidanna case, 1942 F. C. R.90. The two taxes, the one levied on a manufacturer in respect of his goods, the other on a vendor in respect of his sales, may, as is there pointed out, in one sense overlap. But in law there is no overlapping. The taxes are separate and distinct imposts. If in fact they overlap, that may be because the taxing authority, imposing a duty of excise, finds it convenient to impose that duty at the moment when the exercisable article leaves the factory or workshop for the first time on the occasion of its sale. But that method of collecting the tax is an accident of administration; it is not of the essence of the duty of excise, which is attracted by the manufacture itself. That this is so is clearly exemplified in those excepted cases in which the Provincial, not the Federal, legislature has power to impose a duty of excise. In such cases, there appears to be no reason why the Provincial legislature should not impose a duty of excise in respect of the commodity manufactured and then a tax on first or other sales of the same commodity. Whether or not such a course is followed appears to be merely a matter of administrative convenience. So, by parity of reasoning, may the Federal Legislature impose a duty of excise on the manufacture of excisable goods and the Provincial legislature impose a tax on the sale of the same goods when manufactured."(11) This discussion clearly shows that the relevant question is what is the nature of the tax. Excise duty is a tax on manufactured goods. Octrai duty is a tax levied on the entry of goods within a particular area. Under the Excise Act, tobacco becomes excisable goods within the meaning of Item 9 in the Schedule. The subsequent use of such manufactured goods in making different articles only affects the rate of tax. Therefore, tobacco becomes subject to excise duty when it reaches the stage of manufacture mentioned in Item 9 of the Schedule to the Excise Act. Even before it is converted into bidis or any other article mentioned in the entry it has become excisable goods and liable to pay excise duty. The levy of such duty is therefore not in conflict with the levy of an impost on the entry of the goods within a certain area.(12) It was argued that under the rules framed by the Government under the Central Excises and Salt Act, 1944, Government retained control over the movement of the goods from the beginning till the end. This arguments is not of assistance in determining the nature of the octroi tax. As Government has to collect excise duty and the rate of duty, varies in respect of different shapes in which the excisable goods are ultimately converted, there is nothing unnatural in the Government keeping a control and note of the articles till the manufactured article becomes a commodity, and is mixed up with the commodities used by the people at large. The argument that Entry 49 in List II being in conflict with Entry 45 in List I of Sch. VII, Constitution Act, Entry 49 should be read as "for consumption or use, except for manufacture of goods", in our opinion is unsound. In the first place, the approach to the question itself is wrong. When a particular legislation falls within the exact words of an entry in the Provincial List, under S. 100 it is valid and no question of reconciliation arises. A similar argument advanced in regard to a supposed conflict between Entry 19 of List I and Entry 31 of List II was rejected by us in case No. 27 of 1949. (Miss Kishore Shetty v. The King). 1949 F.C.R. 650 In the present case, if the question of the validity of the Provincial legislation arises, on the interpretation of Entry 49 in List II it appears that the answer must be in favour of the validity of the legislation. The decision in Administrator, Lahore Municipality v. Daulat Ram, 1942 F. C. R. 31, does not help the appellant because in that case Entry 47 in List I is only, salt". A comparison with Entry 45 in List shows distinctly that Entry 45 is limited to excise duty and is not wide enough to cover tobacoo or other goods generally for all purposes of legislation. The observations in that case therefore are not helpful to the appellant.(13) On the second part of the contention the appellant can succeed only if he establishes that the provisions of the Excise Act are contrary to the levy and recovery of duty under the Provincial Act of 1922. There is no express provision in the Excise Act contrary to the provisions of the Municipal Act. Unless, therefore, it is necessarily implied under the Excise Act, the levy of the octroi duty under the Municipal Act continues to be valid. On this point again the appellants argument is that the levy of a duty at any stage of the manufacturer of bidis out of tobacco would be the levy of the excise duty and therefore those provisions were contrary to the provisions permitting the levy of the octroi duty.(14) We have already discussed and rejected in the first part of the judgment this contention. It is wrong to think that two independent imposts arising from two different sets of circumstances were not permitted in law. In our opinion, therefore, there is nothing in the Excise Act to make its provisions contrary to the provisions of S. 66 (1) (e), Central Provinces Municipalities Act or to the levy of octroi duty under the same.
### Response:
0
### Explanation:
to be valid until the Central Legislature passed an Act the provisions whereof were contrary to the provisions of Provincial legislature or to the leavy of a tax under the Provincial Act. Examining next the contentions of the appellant it seems clear that octroi duty as levied by the respondent comes within the exact wording of Entry 49 of List II of Sch. 7, Constitution Act. Prima facie, therefore, there is no reason to consider the levy of the octroi duty under the Provincial legislation invalid.The error underlying the argument of the appellant is the assumption that any impost of tax from the time tobacco came into existence till the same was converted into bidis is necessarily excise duty.The two taxes, the one levied on a manufacturer in respect of his goods, the other on a vendor in respect of his sales, may, as is there pointed out, in one sense overlap. But in law there is no overlapping. The taxes are separate and distinct imposts. If in fact they overlap, that may be because the taxing authority, imposing a duty of excise, finds it convenient to impose that duty at the moment when the exercisable article leaves the factory or workshop for the first time on the occasion of its sale. But that method of collecting the tax is an accident of administration; it is not of the essence of the duty of excise, which is attracted by the manufacture itself. That this is so is clearly exemplified in those excepted cases in which the Provincial, not the Federal, legislature has power to impose a duty of excise. In such cases, there appears to be no reason why the Provincial legislature should not impose a duty of excise in respect of the commodity manufactured and then a tax on first or other sales of the same commodity. Whether or not such a course is followed appears to be merely a matter of administrative convenience. So, by parity of reasoning, may the Federal Legislature impose a duty of excise on the manufacture of excisable goods and the Provincial legislature impose a tax on the sale of the same goods when manufactured.Excise duty is a tax on manufactured goods. Octrai duty is a tax levied on the entry of goods within a particular area. Under the Excise Act, tobacco becomes excisable goods within the meaning of Item 9 in the Schedule. The subsequent use of such manufactured goods in making different articles only affects the rate of tax. Therefore, tobacco becomes subject to excise duty when it reaches the stage of manufacture mentioned in Item 9 of the Schedule to the Excise Act. Even before it is converted into bidis or any other article mentioned in the entry it has become excisable goods and liable to pay excise duty. The levy of such duty is therefore not in conflict with the levy of an impost on the entry of the goods within a certainIt was argued that under the rules framed by the Government under the Central Excises and Salt Act, 1944, Government retained control over the movement of the goods from the beginning till the end.This arguments is not of assistance in determining the nature of the octroi tax. As Government has to collect excise duty and the rate of duty, varies in respect of different shapes in which the excisable goods are ultimately converted, there is nothing unnatural in the Government keeping a control and note of the articles till the manufactured article becomes a commodity, and is mixed up with the commodities used by the people at large. The argument that Entry 49 in List II being in conflict with Entry 45 in List I of Sch. VII, Constitution Act, Entry 49 should be read as "for consumption or use, except for manufacture of goods", in our opinion is unsound. In the first place, the approach to the question itself is wrong. When a particular legislation falls within the exact words of an entry in the Provincial List, under S. 100 it is valid and no question of reconciliation arises. A similar argument advanced in regard to a supposed conflict between Entry 19 of List I and Entry 31 of List II was rejected by us in case No. 27 of 1949. (Miss Kishore Shetty v. The King). 1949 F.C.R. 650 In the present case, if the question of the validity of the Provincial legislation arises, on the interpretation of Entry 49 in List II it appears that the answer must be in favour of the validity of the legislation. The decision in Administrator, Lahore Municipality v. Daulat Ram, 1942 F. C. R. 31, does not help the appellant because in that case Entry 47 in List I is only, salt". A comparison with Entry 45 in List shows distinctly that Entry 45 is limited to excise duty and is not wide enough to cover tobacoo or other goods generally for all purposes of legislation. The observations in that case therefore are not helpful to the appellant.There is no express provision in the Excise Act contrary to the provisions of the Municipal Act. Unless, therefore, it is necessarily implied under the Excise Act, the levy of the octroi duty under the Municipal Act continues to be valid. On this point again the appellants argument is that the levy of a duty at any stage of the manufacturer of bidis out of tobacco would be the levy of the excise duty and therefore those provisions were contrary to the provisions permitting the levy of the octroi duty.We have already discussed and rejected in the first part of the judgment this contention. It is wrong to think that two independent imposts arising from two different sets of circumstances were not permitted in law. In our opinion, therefore, there is nothing in the Excise Act to make its provisions contrary to the provisions of S. 66 (1) (e), Central Provinces Municipalities Act or to the levy of octroi duty under the
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Commissioner of Income Tax Vs. Express Newspapers Limited | dividend, that in clause (c) of the second proviso in the Finance Act, the expression used is "declared or distributed to its shareholders". This clearly postulates a situation where there may be distribution of dividend without its declaration. This can be where the Board of Directors, and not the Company in general meeting, decides to pay interim dividend in which case the rebate will be withdrawn in the year of distribution of the interim dividend, there being no declaration by the Company for the payment thereof. 10. The difference in the nature of interim dividend and the dividend declared by the company in its general meeting is clearly brought out in a decision of this Court in the case of J. Dalmia v. CIT. In that case the Board of Directors had declared an interim dividend in its meeting held on 30-8-1950 and payment was made to the shareholders by dividend warrants issued on 28-12-1950. The accounting year of the assessee ended on 30-9-1950, relevant to the Assessment Year 1951-52. The question arose whether the interim dividend declared by the Board of Directors in the previous year relevant to the Assessment Year 1951-52 was to be taxed in that year or was the interim dividend liable to be taxed in the Assessment Year 1952-53 because the payment was made in that previous year. Dealing with the nature of the interim dividend, this Court (at ITR pp. 87-88) observed as follows "There is no doubt that a declaration of dividend by a company in general meeting gives rise to a debt. When a company declares a dividend on its shares, a debt immediately becomes payable to each shareholder in respect of his dividend for which he can sue at law, and the statute of limitation immediately begins to run : Severn and Wye and Severn Bridge Rly. Co., In re ( 1896 (1) Ch 559 : 65 LJ(Ch) 400). But this rule applies only in case of dividend declared by the company in general meeting. A final dividend in general may be sanctioned at an annual meeting when the accounts are presented to the members. But power to pay interim dividend is usually vested by the articles of association in the directors. For paying interim dividend a resolution of the company is not required : If the directors are authorised by the articles of association they may pay such amount as they think proper, having regard to their estimate of the profits made by the company. Interim dividend is therefore paid pursuant to the resolution of the directors on some day between the ordinary a general meetings of the company. On payment, undoubtedly interim dividend becomes the property of the shareholder. But a mere resolution of the directors resolving to pay a certain amount as interim dividend does not create a debt enforceable against the company, for it is always open to the directors to rescind the resolution before payment of the dividend : In Lagunas Nitrate Co. Ltd. v. Henry Schroeder and Co. ( 1901 (17) TLR 625) the directors of a company passed a resolution declaring interim dividend payable on a future date, and requested the companys bankers to set apart, out of the money of the company in their hands, into a special account entitled Interim Dividend Account, a sum sufficient to cover the dividend, pending the companys instructions. But before the date fixed for payment, the directors resolved that pending certain litigation to which the company was a party payment of dividend be postponed. It was held by the court that the directors had the right even after resolving to pay interim dividend to rescind the resolution and no enforceable right arose in favour of the members of the company by the declaration of interim dividendTherefore, a declaration by a company in general meeting gives rise to an enforceable obligation, but a resolution of the board of directors resolving to pay interim dividend or even resolving to declare interim dividend pursuant to the authority conferred upon them by the articles of association gives rise to no enforceable obligation against the company, because the resolution is always capable of being rescinded. Therefore, departure in the text of Article 74 of the articles of association of Govan Bros. from the statutory version under Table A of the power in respect of interim dividend, dividend which may be entrusted to the directors, makes no real difference in the true character of the right arising in favour of the members of the company on the execution of the power. The directors, by the articles of association, are entrusted with the administration of the affairs of a company; it is open to them if so authorised to declare interim dividend. They may, but are not bound to, pay interim dividend even if the finances of the company justify such payment. Even if the directors have resolved to pay interim dividend, they may before payment rescind the resolution." 11. The aforesaid observation clearly supports the view which we have taken, namely, that the nature of the interim dividend is such that it gives no right to the shareholders to receive it merely on the passing of the resolution by the Board of Directors whereas on a dividend being declared by the Company in general meeting a vested right accrues to the shareholders. This being so, if the Company in general meeting had declared a dividend on 6-12-1962 and the same was distributed in January 1963 then the aforesaid Explanation 3 would have been applicable. But in the present case, the decision of the Board of Directors on 6-12-1962 to pay interim dividend cannot be construed as meaning declaration of dividend by the Company. This being so what would be relevant is the distribution of the dividend in January 1963, thereby attracting the provisions of clause (c) of proviso 2(i) and the Income Tax authorities were therefore right in reducing the rebate in the manner in which they did for the Assessment Year 1964-65. | 1[ds]7. On a careful examination of the aforesaid provision, it appears to us that the rebate given by the first proviso can be reduced if dividend has been declared or distributed by the Company to its shareholders. Two expressions are used, namely, "declared" and "distributed". Learned counsel for the respondent is right in construing Explanation 3 to mean that if the declaration of the dividend is in the year prior to the commencement of the relevant previous year but the distribution is in the relevant previous year then no rebate would be reduced in which distribution takes place. In other words, the rebate, as far as Explanation 3 is concerned, can be reduced only if the declaration and the distribution is in the same previous year8. In our opinion, the High Court committed an error in proceeding on the assumption that the resolution passed by the Board of Directors on 6-12-1962 amounted to a declaration of dividend. Under Section 205 of the Companies Act, dividend is distributed on a resolution being passed by the Company in general meeting. The Companies Act, as such, does not specifically refer to the distribution of interim dividendThe perusal of a aforesaid clauses 85 and 86 clearly brings out the distinction in the power of the Company and the Board of Directors. It is a Company which in general meeting is empowered to declare dividend. Clause 86 does not give the Board of Directors power to declare any dividend but only enables it to pay interim dividend to the members of the Company from time to time. It is because there is a difference in the power which is exercised by the Company in general meeting, vis-a-vis the one exercised by the Board of Directors while deciding to pay an interim dividend, that in clause (c) of the second proviso in the Finance Act, the expression used is "declared or distributed to its shareholders". This clearly postulates a situation where there may be distribution of dividend without its declaration. This can be where the Board of Directors, and not the Company in general meeting, decides to pay interim dividend in which case the rebate will be withdrawn in the year of distribution of the interim dividend, there being no declaration by the Company for the payment thereof11. The aforesaid observation clearly supports the view which we have taken, namely, that the nature of the interim dividend is such that it gives no right to the shareholders to receive it merely on the passing of the resolution by the Board of Directors whereas on a dividend being declared by the Company in general meeting a vested right accrues to the shareholders. This being so, if the Company in general meeting had declared a dividend on 6-12-1962 and the same was distributed in January 1963 then the aforesaid Explanation 3 would have been applicable. But in the present case, the decision of the Board of Directors on 6-12-1962 to pay interim dividend cannot be construed as meaning declaration of dividend by the Company. This being so what would be relevant is the distribution of the dividend in January 1963, thereby attracting the provisions of clause (c) of proviso 2(i) and the Income Tax authorities were therefore right in reducing the rebate in the manner in which they did for the Assessment Year 1964-65 | 1 | 2,461 | 611 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
### Input:
dividend, that in clause (c) of the second proviso in the Finance Act, the expression used is "declared or distributed to its shareholders". This clearly postulates a situation where there may be distribution of dividend without its declaration. This can be where the Board of Directors, and not the Company in general meeting, decides to pay interim dividend in which case the rebate will be withdrawn in the year of distribution of the interim dividend, there being no declaration by the Company for the payment thereof. 10. The difference in the nature of interim dividend and the dividend declared by the company in its general meeting is clearly brought out in a decision of this Court in the case of J. Dalmia v. CIT. In that case the Board of Directors had declared an interim dividend in its meeting held on 30-8-1950 and payment was made to the shareholders by dividend warrants issued on 28-12-1950. The accounting year of the assessee ended on 30-9-1950, relevant to the Assessment Year 1951-52. The question arose whether the interim dividend declared by the Board of Directors in the previous year relevant to the Assessment Year 1951-52 was to be taxed in that year or was the interim dividend liable to be taxed in the Assessment Year 1952-53 because the payment was made in that previous year. Dealing with the nature of the interim dividend, this Court (at ITR pp. 87-88) observed as follows "There is no doubt that a declaration of dividend by a company in general meeting gives rise to a debt. When a company declares a dividend on its shares, a debt immediately becomes payable to each shareholder in respect of his dividend for which he can sue at law, and the statute of limitation immediately begins to run : Severn and Wye and Severn Bridge Rly. Co., In re ( 1896 (1) Ch 559 : 65 LJ(Ch) 400). But this rule applies only in case of dividend declared by the company in general meeting. A final dividend in general may be sanctioned at an annual meeting when the accounts are presented to the members. But power to pay interim dividend is usually vested by the articles of association in the directors. For paying interim dividend a resolution of the company is not required : If the directors are authorised by the articles of association they may pay such amount as they think proper, having regard to their estimate of the profits made by the company. Interim dividend is therefore paid pursuant to the resolution of the directors on some day between the ordinary a general meetings of the company. On payment, undoubtedly interim dividend becomes the property of the shareholder. But a mere resolution of the directors resolving to pay a certain amount as interim dividend does not create a debt enforceable against the company, for it is always open to the directors to rescind the resolution before payment of the dividend : In Lagunas Nitrate Co. Ltd. v. Henry Schroeder and Co. ( 1901 (17) TLR 625) the directors of a company passed a resolution declaring interim dividend payable on a future date, and requested the companys bankers to set apart, out of the money of the company in their hands, into a special account entitled Interim Dividend Account, a sum sufficient to cover the dividend, pending the companys instructions. But before the date fixed for payment, the directors resolved that pending certain litigation to which the company was a party payment of dividend be postponed. It was held by the court that the directors had the right even after resolving to pay interim dividend to rescind the resolution and no enforceable right arose in favour of the members of the company by the declaration of interim dividendTherefore, a declaration by a company in general meeting gives rise to an enforceable obligation, but a resolution of the board of directors resolving to pay interim dividend or even resolving to declare interim dividend pursuant to the authority conferred upon them by the articles of association gives rise to no enforceable obligation against the company, because the resolution is always capable of being rescinded. Therefore, departure in the text of Article 74 of the articles of association of Govan Bros. from the statutory version under Table A of the power in respect of interim dividend, dividend which may be entrusted to the directors, makes no real difference in the true character of the right arising in favour of the members of the company on the execution of the power. The directors, by the articles of association, are entrusted with the administration of the affairs of a company; it is open to them if so authorised to declare interim dividend. They may, but are not bound to, pay interim dividend even if the finances of the company justify such payment. Even if the directors have resolved to pay interim dividend, they may before payment rescind the resolution." 11. The aforesaid observation clearly supports the view which we have taken, namely, that the nature of the interim dividend is such that it gives no right to the shareholders to receive it merely on the passing of the resolution by the Board of Directors whereas on a dividend being declared by the Company in general meeting a vested right accrues to the shareholders. This being so, if the Company in general meeting had declared a dividend on 6-12-1962 and the same was distributed in January 1963 then the aforesaid Explanation 3 would have been applicable. But in the present case, the decision of the Board of Directors on 6-12-1962 to pay interim dividend cannot be construed as meaning declaration of dividend by the Company. This being so what would be relevant is the distribution of the dividend in January 1963, thereby attracting the provisions of clause (c) of proviso 2(i) and the Income Tax authorities were therefore right in reducing the rebate in the manner in which they did for the Assessment Year 1964-65.
### Response:
1
### Explanation:
7. On a careful examination of the aforesaid provision, it appears to us that the rebate given by the first proviso can be reduced if dividend has been declared or distributed by the Company to its shareholders. Two expressions are used, namely, "declared" and "distributed". Learned counsel for the respondent is right in construing Explanation 3 to mean that if the declaration of the dividend is in the year prior to the commencement of the relevant previous year but the distribution is in the relevant previous year then no rebate would be reduced in which distribution takes place. In other words, the rebate, as far as Explanation 3 is concerned, can be reduced only if the declaration and the distribution is in the same previous year8. In our opinion, the High Court committed an error in proceeding on the assumption that the resolution passed by the Board of Directors on 6-12-1962 amounted to a declaration of dividend. Under Section 205 of the Companies Act, dividend is distributed on a resolution being passed by the Company in general meeting. The Companies Act, as such, does not specifically refer to the distribution of interim dividendThe perusal of a aforesaid clauses 85 and 86 clearly brings out the distinction in the power of the Company and the Board of Directors. It is a Company which in general meeting is empowered to declare dividend. Clause 86 does not give the Board of Directors power to declare any dividend but only enables it to pay interim dividend to the members of the Company from time to time. It is because there is a difference in the power which is exercised by the Company in general meeting, vis-a-vis the one exercised by the Board of Directors while deciding to pay an interim dividend, that in clause (c) of the second proviso in the Finance Act, the expression used is "declared or distributed to its shareholders". This clearly postulates a situation where there may be distribution of dividend without its declaration. This can be where the Board of Directors, and not the Company in general meeting, decides to pay interim dividend in which case the rebate will be withdrawn in the year of distribution of the interim dividend, there being no declaration by the Company for the payment thereof11. The aforesaid observation clearly supports the view which we have taken, namely, that the nature of the interim dividend is such that it gives no right to the shareholders to receive it merely on the passing of the resolution by the Board of Directors whereas on a dividend being declared by the Company in general meeting a vested right accrues to the shareholders. This being so, if the Company in general meeting had declared a dividend on 6-12-1962 and the same was distributed in January 1963 then the aforesaid Explanation 3 would have been applicable. But in the present case, the decision of the Board of Directors on 6-12-1962 to pay interim dividend cannot be construed as meaning declaration of dividend by the Company. This being so what would be relevant is the distribution of the dividend in January 1963, thereby attracting the provisions of clause (c) of proviso 2(i) and the Income Tax authorities were therefore right in reducing the rebate in the manner in which they did for the Assessment Year 1964-65
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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:
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:
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:
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.
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Apollo Tyres Ltd Vs. C.P. Sebastian | Civil Appeal No. 7007 of 2003 1. This Appeal has been filed against the impugned judgment of the High Court of Kerala at Ernakulam dated 06th September, 2002 passed in CMA No. 14 of 2001 whereby the High Court while confirming the judgment and decree of the court below has held that the civil Court has jurisdiction to entertain the matter. 2. The respondent-plaintiff, hereinafter referred to as the plaintiff was an employee of the appellant-defendant, hereinafter referred to as the defendant which is a private company and not State under Article 12 of the Constitution. 3. Facts giving rise to this appeal are: The plaintiff filed a suit being OS No. 2098 of 1999 before the Munsiffs Court, Irinjalakuda, District Thrissur, Kerala seeking the following reliefs: A. Declaring that plaintiff is still a workman (Radial Tyre Builder) and continues to be a workman under the defendant entitled for wages and all other consequential benefits of service from the defendant. B. Declaring that the order of transfer (Ref. WKS/PSL dated 08-10-1999) issued by the defendant transferring plaintiff to West Bengal is intended to victimize, made with malafide intentions, irregular and illegal. C. Restraining defendant and its officers from compelling plaintiff by any modes to accept any promoted post which he is not willing to hold. D. Restraining the defendant, its officers and men from any way interfering with plaintiffs right to perform legitimate trade union activities as the General Secretary of the union Apollo Tyres Workers Movement. E. Granting the cost of suit from the defendant and allowing plaintiff to realize the same from the defendant and its assets. 4. Defendant filed a written statement in the suit as well as I.A. No. 1707 of 2000 stating that the Civil Court has no jurisdiction in the matter. The trial Court by its order dated 05th day of October, 2000 allowed the said application and dismissed the suit filed by the plaintiff. Aggrieved against the aforesaid order of the trial Court, plaintiff filed an appeal before the first appellate authority. The first appellate authority by its order dated 25th January, 2001 reversed the judgment and decree of the trial Court and held that the Civil Court has jurisdiction to entertain the dispute. Accordingly, the matter was remanded to the trial Court for a fresh disposal. Aggrieved against the order of the first appellate authority, the defendant filed a Civil Miscellaneous Appeal No. 14 of 2001 in the High Court of Kerala at Ernakulam. 5. The High Court, by the impugned order, has confirmed the order of the first appellate authority and held that the civil Court has jurisdiction to entertain the matter. It was also directed that the suit shall be disposed of within three months. Aggrieved against the impugned order, the defendant is before us. Heard learned counsel for the parties and perused the record. 6. On the facts of the case, we are clearly of the view that the suit filed by the plaintiff was barred by Section 14(b) of the Specific Relief Act, 1963 which states that a contract of personal service cannot be enforced in a civil suit. In our opinion, if the plaintiff had any grievance and if he is a workman as defined in the Industrial Disputes Act, 1947, he should have raised an industrial dispute and sought relief under the Industrial Tribunal. There are many powers which the Labour Court or Industrial Tribunal enjoy which the Civil Court does not enjoy e.g. the power to enforce contracts of personal service, to create contracts, to change contracts etc. These things can only be done by the Labour Court or Industrial Tribunal but cannot be done by a civil Court. A contract for personal service includes all matters relating to the service of the employee e.g. confirmation, suspension, transfer, termination etc. 7. In our opinion, the reliefs claimed by the plaintiff were clearly seeking enforcement of a contract of personal service and the civil Court has no jurisdiction to grant such reliefs as held by this Court in the case of Pearlite Lioners (P) Ltd. vs. Manorama Sirsi (2004) 3 SCC 172. The High Court and the first appellate Court were clearly in error in holding that the civil court had jurisdiction in the matter and the trial Court was right in holding that the civil court had no jurisdiction and rightly dismissed the suit filed by the plaintiff. 8. | 1[ds]On the facts of the case, we are clearly of the view that the suit filed by the plaintiff was barred by Section 14(b) of the Specific Relief Act, 1963 which states that a contract of personal service cannot be enforced in a civil suit. In our opinion, if the plaintiff had any grievance and if he is a workman as defined in the Industrial Disputes Act, 1947, he should have raised an industrial dispute and sought relief under the Industrial Tribunal. There are many powers which the Labour Court or Industrial Tribunal enjoy which the Civil Court does not enjoy e.g. the power to enforce contracts of personal service, to create contracts, to change contracts etc. These things can only be done by the Labour Court or Industrial Tribunal but cannot be done by a civil Court. A contract for personal service includes all matters relating to the service of the employee e.g. confirmation, suspension, transfer, termination etcIn our opinion, the reliefs claimed by the plaintiff were clearly seeking enforcement of a contract of personal service and the civil Court has no jurisdiction to grant such reliefs as held by this Court in the case of Pearlite Lioners (P) Ltd. vs. Manorama Sirsi (2004) 3 SCC 172. The High Court and the first appellate Court were clearly in error in holding that the civil court had jurisdiction in the matter and the trial Court was right in holding that the civil court had no jurisdiction and rightly dismissed the suit filed by the plaintiff. | 1 | 818 | 287 | ### 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:
Civil Appeal No. 7007 of 2003 1. This Appeal has been filed against the impugned judgment of the High Court of Kerala at Ernakulam dated 06th September, 2002 passed in CMA No. 14 of 2001 whereby the High Court while confirming the judgment and decree of the court below has held that the civil Court has jurisdiction to entertain the matter. 2. The respondent-plaintiff, hereinafter referred to as the plaintiff was an employee of the appellant-defendant, hereinafter referred to as the defendant which is a private company and not State under Article 12 of the Constitution. 3. Facts giving rise to this appeal are: The plaintiff filed a suit being OS No. 2098 of 1999 before the Munsiffs Court, Irinjalakuda, District Thrissur, Kerala seeking the following reliefs: A. Declaring that plaintiff is still a workman (Radial Tyre Builder) and continues to be a workman under the defendant entitled for wages and all other consequential benefits of service from the defendant. B. Declaring that the order of transfer (Ref. WKS/PSL dated 08-10-1999) issued by the defendant transferring plaintiff to West Bengal is intended to victimize, made with malafide intentions, irregular and illegal. C. Restraining defendant and its officers from compelling plaintiff by any modes to accept any promoted post which he is not willing to hold. D. Restraining the defendant, its officers and men from any way interfering with plaintiffs right to perform legitimate trade union activities as the General Secretary of the union Apollo Tyres Workers Movement. E. Granting the cost of suit from the defendant and allowing plaintiff to realize the same from the defendant and its assets. 4. Defendant filed a written statement in the suit as well as I.A. No. 1707 of 2000 stating that the Civil Court has no jurisdiction in the matter. The trial Court by its order dated 05th day of October, 2000 allowed the said application and dismissed the suit filed by the plaintiff. Aggrieved against the aforesaid order of the trial Court, plaintiff filed an appeal before the first appellate authority. The first appellate authority by its order dated 25th January, 2001 reversed the judgment and decree of the trial Court and held that the Civil Court has jurisdiction to entertain the dispute. Accordingly, the matter was remanded to the trial Court for a fresh disposal. Aggrieved against the order of the first appellate authority, the defendant filed a Civil Miscellaneous Appeal No. 14 of 2001 in the High Court of Kerala at Ernakulam. 5. The High Court, by the impugned order, has confirmed the order of the first appellate authority and held that the civil Court has jurisdiction to entertain the matter. It was also directed that the suit shall be disposed of within three months. Aggrieved against the impugned order, the defendant is before us. Heard learned counsel for the parties and perused the record. 6. On the facts of the case, we are clearly of the view that the suit filed by the plaintiff was barred by Section 14(b) of the Specific Relief Act, 1963 which states that a contract of personal service cannot be enforced in a civil suit. In our opinion, if the plaintiff had any grievance and if he is a workman as defined in the Industrial Disputes Act, 1947, he should have raised an industrial dispute and sought relief under the Industrial Tribunal. There are many powers which the Labour Court or Industrial Tribunal enjoy which the Civil Court does not enjoy e.g. the power to enforce contracts of personal service, to create contracts, to change contracts etc. These things can only be done by the Labour Court or Industrial Tribunal but cannot be done by a civil Court. A contract for personal service includes all matters relating to the service of the employee e.g. confirmation, suspension, transfer, termination etc. 7. In our opinion, the reliefs claimed by the plaintiff were clearly seeking enforcement of a contract of personal service and the civil Court has no jurisdiction to grant such reliefs as held by this Court in the case of Pearlite Lioners (P) Ltd. vs. Manorama Sirsi (2004) 3 SCC 172. The High Court and the first appellate Court were clearly in error in holding that the civil court had jurisdiction in the matter and the trial Court was right in holding that the civil court had no jurisdiction and rightly dismissed the suit filed by the plaintiff. 8.
### Response:
1
### Explanation:
On the facts of the case, we are clearly of the view that the suit filed by the plaintiff was barred by Section 14(b) of the Specific Relief Act, 1963 which states that a contract of personal service cannot be enforced in a civil suit. In our opinion, if the plaintiff had any grievance and if he is a workman as defined in the Industrial Disputes Act, 1947, he should have raised an industrial dispute and sought relief under the Industrial Tribunal. There are many powers which the Labour Court or Industrial Tribunal enjoy which the Civil Court does not enjoy e.g. the power to enforce contracts of personal service, to create contracts, to change contracts etc. These things can only be done by the Labour Court or Industrial Tribunal but cannot be done by a civil Court. A contract for personal service includes all matters relating to the service of the employee e.g. confirmation, suspension, transfer, termination etcIn our opinion, the reliefs claimed by the plaintiff were clearly seeking enforcement of a contract of personal service and the civil Court has no jurisdiction to grant such reliefs as held by this Court in the case of Pearlite Lioners (P) Ltd. vs. Manorama Sirsi (2004) 3 SCC 172. The High Court and the first appellate Court were clearly in error in holding that the civil court had jurisdiction in the matter and the trial Court was right in holding that the civil court had no jurisdiction and rightly dismissed the suit filed by the plaintiff.
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ODISHA STATE FINANCIAL CORPORATION Vs. ODISHA STATE FINANCIAL CORPORATION EMPLOYEES UNION & ORS | of the Corporation were approved by the Board of Directors in its 368th meeting held on 18th June, 2012 but the administrative department in its meeting held on 10th August, 2016 did not approve the same. 8. The extract of the minutes of the meeting held under the Chairmanship of the Principal Secretary of the Government of India, MSME Department dated 10th August, 2016 relevant for the purpose is reproduced as under:- ….. Form the records, it is revealed that the OSFC has defaulted to the tune of Rs. 8.28 crore towards payment of loan to SIDBI. Besides, presently, the total salary burden of OSFC is about Rs. 68.00 lakh per month which is met out of day to day recovery. It was also revealed that the OSFC employees have not received their salary for last three months viz. (a) May (b) June (c ) July of 2016 as there is no fund. The OSFC is required to pay the loan of SIDBI in instalments which the OSFC has failed to pay and has become a defaulter. This has created an adverse situation because the default in the payment of loan to SIDBI has resulted in breach of agreement. So the OSFC is not meeting the criteria stipulated by both Finance Department and PE department of the Government for payment of Revised Pay Scale. Accordingly, after careful deliberations on the issues involved, it is felt that the OSFC is not running under severe financial constraints and yet to fulfil the eligibility criteria as stipulated by the Public Enterprises Department vide their Resolution No. 1386 dated 8.5.2009. Although the Board of Directors of OSFC resolved in their meeting held on 18.06.2012 to implement the Revised Pay Scale w.e.f. 01.04.2012, but the same was not with the PE Department concurrence. The present situation of the Corporation is not conducive for allowing the revised pay as PE Department/Finance Department guidelines. Therefore, after careful consideration, as per the direction of Honble High Court, in PWC No. 6469/2014, it is decided that the proposal for implementation of Revised Pay Scale to the employees of OSFC may not be considered at this stage. The meeting ended with a vote of thanks to the Chair. 9. Since the recommendations were not approved by the Administrative Department, the stage of seeking approval by the Finance Department did not arise at this stage, the writ petition came to be preferred by the employees Union before the learned Single Judge under Article 226 of the Constitution of India. 10. The learned Single Judge recorded the statement of the State counsel that the Administrative Department in the minutes of meeting dated 10th August, 2016 has decided not to implement the scale of pay as suggested by the Board still proceeded on the statement made by the counsel appearing for the Corporation that the Corporation would pay the arrear benefits under revised scale of pay w.e.f. 1st April, 2012 as per the decision of the Board and disposed of the writ petition under its Order dated 10th April, 2018. 11. It may be relevant to note at this stage that the revised scale of pay under ORSP Rules, 2008 could not have been implemented without being approved by the Administrative Department and the Department of Finance, Government of Orissa. Thus, the directions of the learned Single Judge under Order dated 10th April, 2018 in itself were not sustainable. 12. When the appeal came to be preferred at the instance of the appellant, the Division Bench of the High Court, even after recording the statement of the counsel that the recommendations of the Corporation not being approved by the Administrative Department/Finance Department, still dismissed the writ appeal on the premise that the financial condition of a State functionary is not a ground to refuse legitimate dues of its employees without noticing the fact that the ORSP Rules, 2008 introduced for the State Government employees vide notification dated 16th December, 2008 could not have been extended to PSUs and particularly to the employees of the Corporation, unless recommendations made by PSUs being approved by the concerned administrative Department, i.e., MSME, in the instant case, and after getting approval of the Finance Department for sanction of the scheme. 13. Indisputedly, as already observed, the recommendations were neither approved by the Administrative Department nor the Finance Department, Government of Orissa. In the given circumstances, the recommendations made by the Corporation/Board of Directors to implement the ORSP Rules, 2008 to the employees of the Corporation were not available for its implementation and this has been completely overlooked by the Division Bench of the High Court while dismissing the appeal filed by the present appellant. 14. Learned counsel for the respondents has tried to justify that there was no such financial loss to the Corporation and the profit and loss account for the years 2005-2006 to 2008-2009 shows the profits earned by the Corporation. Although, it may not have any material bearing on the issue for our consideration but one of the condition of eligibility as being resolved by the Government of Orissa in its Resolution dated 8th May, 2009 for taking decision to implement ORSP Rules, 2008 to the employees of the State PSUs to keep in view the previous balance sheets of the undertakings which must show cumulative profit at least for the last consecutive two years and the material placed on record justify that the balance sheet of the Corporation reflects accumulated financial losses in the preceding years. 15. We have heard learned counsel for the parties and, in our considered view, the recommendations made by the Corporation in introducing the ORSP Rules, 2008 for the employees of the Corporation in the absence of being approved by the Administrative Department, i.e., MSME, in the instant case, and by the Finance Department were not available for implementation and the finding which has been recorded by the learned Single Judge and affirmed in appeal, in our considered view, is not sustainable and deserves to be set aside. | 1[ds]13. Indisputedly, as already observed, the recommendations were neither approved by the Administrative Department nor the Finance Department, Government of Orissa. In the given circumstances, the recommendations made by the Corporation/Board of Directors to implement the ORSP Rules, 2008 to the employees of the Corporation were not available for its implementation and this has been completely overlooked by the Division Bench of the High Court while dismissing the appeal filed by the present appellant.Although, it may not have any material bearing on the issue for our consideration but one of the condition of eligibility as being resolved by the Government of Orissa in its Resolution dated 8th May, 2009 for taking decision to implement ORSP Rules, 2008 to the employees of the State PSUs to keep in view the previous balance sheets of the undertakings which must show cumulative profit at least for the last consecutive two years and the material placed on record justify that the balance sheet of the Corporation reflects accumulated financial losses in the preceding years.15. We have heard learned counsel for the parties and, in our considered view, the recommendations made by the Corporation in introducing the ORSP Rules, 2008 for the employees of the Corporation in the absence of being approved by the Administrative Department, i.e., MSME, in the instant case, and by the Finance Department were not available for implementation and the finding which has been recorded by the learned Single Judge and affirmed in appeal, in our considered view, is not sustainable and deserves to be set aside. | 1 | 2,031 | 281 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
### Input:
of the Corporation were approved by the Board of Directors in its 368th meeting held on 18th June, 2012 but the administrative department in its meeting held on 10th August, 2016 did not approve the same. 8. The extract of the minutes of the meeting held under the Chairmanship of the Principal Secretary of the Government of India, MSME Department dated 10th August, 2016 relevant for the purpose is reproduced as under:- ….. Form the records, it is revealed that the OSFC has defaulted to the tune of Rs. 8.28 crore towards payment of loan to SIDBI. Besides, presently, the total salary burden of OSFC is about Rs. 68.00 lakh per month which is met out of day to day recovery. It was also revealed that the OSFC employees have not received their salary for last three months viz. (a) May (b) June (c ) July of 2016 as there is no fund. The OSFC is required to pay the loan of SIDBI in instalments which the OSFC has failed to pay and has become a defaulter. This has created an adverse situation because the default in the payment of loan to SIDBI has resulted in breach of agreement. So the OSFC is not meeting the criteria stipulated by both Finance Department and PE department of the Government for payment of Revised Pay Scale. Accordingly, after careful deliberations on the issues involved, it is felt that the OSFC is not running under severe financial constraints and yet to fulfil the eligibility criteria as stipulated by the Public Enterprises Department vide their Resolution No. 1386 dated 8.5.2009. Although the Board of Directors of OSFC resolved in their meeting held on 18.06.2012 to implement the Revised Pay Scale w.e.f. 01.04.2012, but the same was not with the PE Department concurrence. The present situation of the Corporation is not conducive for allowing the revised pay as PE Department/Finance Department guidelines. Therefore, after careful consideration, as per the direction of Honble High Court, in PWC No. 6469/2014, it is decided that the proposal for implementation of Revised Pay Scale to the employees of OSFC may not be considered at this stage. The meeting ended with a vote of thanks to the Chair. 9. Since the recommendations were not approved by the Administrative Department, the stage of seeking approval by the Finance Department did not arise at this stage, the writ petition came to be preferred by the employees Union before the learned Single Judge under Article 226 of the Constitution of India. 10. The learned Single Judge recorded the statement of the State counsel that the Administrative Department in the minutes of meeting dated 10th August, 2016 has decided not to implement the scale of pay as suggested by the Board still proceeded on the statement made by the counsel appearing for the Corporation that the Corporation would pay the arrear benefits under revised scale of pay w.e.f. 1st April, 2012 as per the decision of the Board and disposed of the writ petition under its Order dated 10th April, 2018. 11. It may be relevant to note at this stage that the revised scale of pay under ORSP Rules, 2008 could not have been implemented without being approved by the Administrative Department and the Department of Finance, Government of Orissa. Thus, the directions of the learned Single Judge under Order dated 10th April, 2018 in itself were not sustainable. 12. When the appeal came to be preferred at the instance of the appellant, the Division Bench of the High Court, even after recording the statement of the counsel that the recommendations of the Corporation not being approved by the Administrative Department/Finance Department, still dismissed the writ appeal on the premise that the financial condition of a State functionary is not a ground to refuse legitimate dues of its employees without noticing the fact that the ORSP Rules, 2008 introduced for the State Government employees vide notification dated 16th December, 2008 could not have been extended to PSUs and particularly to the employees of the Corporation, unless recommendations made by PSUs being approved by the concerned administrative Department, i.e., MSME, in the instant case, and after getting approval of the Finance Department for sanction of the scheme. 13. Indisputedly, as already observed, the recommendations were neither approved by the Administrative Department nor the Finance Department, Government of Orissa. In the given circumstances, the recommendations made by the Corporation/Board of Directors to implement the ORSP Rules, 2008 to the employees of the Corporation were not available for its implementation and this has been completely overlooked by the Division Bench of the High Court while dismissing the appeal filed by the present appellant. 14. Learned counsel for the respondents has tried to justify that there was no such financial loss to the Corporation and the profit and loss account for the years 2005-2006 to 2008-2009 shows the profits earned by the Corporation. Although, it may not have any material bearing on the issue for our consideration but one of the condition of eligibility as being resolved by the Government of Orissa in its Resolution dated 8th May, 2009 for taking decision to implement ORSP Rules, 2008 to the employees of the State PSUs to keep in view the previous balance sheets of the undertakings which must show cumulative profit at least for the last consecutive two years and the material placed on record justify that the balance sheet of the Corporation reflects accumulated financial losses in the preceding years. 15. We have heard learned counsel for the parties and, in our considered view, the recommendations made by the Corporation in introducing the ORSP Rules, 2008 for the employees of the Corporation in the absence of being approved by the Administrative Department, i.e., MSME, in the instant case, and by the Finance Department were not available for implementation and the finding which has been recorded by the learned Single Judge and affirmed in appeal, in our considered view, is not sustainable and deserves to be set aside.
### Response:
1
### Explanation:
13. Indisputedly, as already observed, the recommendations were neither approved by the Administrative Department nor the Finance Department, Government of Orissa. In the given circumstances, the recommendations made by the Corporation/Board of Directors to implement the ORSP Rules, 2008 to the employees of the Corporation were not available for its implementation and this has been completely overlooked by the Division Bench of the High Court while dismissing the appeal filed by the present appellant.Although, it may not have any material bearing on the issue for our consideration but one of the condition of eligibility as being resolved by the Government of Orissa in its Resolution dated 8th May, 2009 for taking decision to implement ORSP Rules, 2008 to the employees of the State PSUs to keep in view the previous balance sheets of the undertakings which must show cumulative profit at least for the last consecutive two years and the material placed on record justify that the balance sheet of the Corporation reflects accumulated financial losses in the preceding years.15. We have heard learned counsel for the parties and, in our considered view, the recommendations made by the Corporation in introducing the ORSP Rules, 2008 for the employees of the Corporation in the absence of being approved by the Administrative Department, i.e., MSME, in the instant case, and by the Finance Department were not available for implementation and the finding which has been recorded by the learned Single Judge and affirmed in appeal, in our considered view, is not sustainable and deserves to be set aside.
|
Sunil Dutt Vs. Union of India and Others | the basis of which the grounds of detention were made out, were served upon the detenu as late as on July 19, 1980. The detenu made an incomplete representation on July 26, 1980-incomplete because copies of documents referred to in the grounds were served on him on August 4, 1980. The detention was confirmed by the Central Government on August 23, 1980 after obtaining the Advisory Boards opinion. It appears that on September 12, 1980 the detenu filed a writ petition by way of habeas corpus seeking release but the same was dismissed by this Court in limine on September 24, 1980. Thereafter another representation was made by the detenu through his wife to the detaining authority (the Administrator) in January, 1981 and that representation was disposed of by rejection on April 25, 1981. The present petition seeking release of the detenu has been filed by the petitioner on April 3, 19813. It is well settled that the dismissal of the earlier writ petition of habeas corpus on September 24, 1980 will not operate as a bar to the maintainability of the present writ Petition and no point in that behalf was raised before me by counsel for the respondents4. Counsel for the petitioner has raised two contentions in support of the writ petition. In the first place he has contended that all the documents, whether relied upon or referred to in the grounds of detention, had not been supplied to the detenu along with the grounds of detention and such failure constituted a breach of the guarantee under Art. 22(5) of the Constitution and since such failure has affected the right of the detenu to make a proper and effective representation any further detention in breach of the safeguard would be illegal. Secondly, it is contended that there has been an undue and unexplained delay of more than four months in the matter of consideration of the representation which the detenu has sent through his wife and further that the said representation has been disposed of by the detaining authority (the Administrator) by not applying its independent mind but after getting influenced by the Central Government decision in the matter. It is unnecessary for me to consider the second contention urged by counsel for the petitioner as, in my view, the first contention is sufficient to dispose of this habeas corpus petition5. It was not disputed before me that along with the grounds of detention which were served on the detenu on July 11, 1980, none of the documents, either relied upon or referred to in the grounds, were served upon him. Admittedly, the service of such documents was delayed up to July 19, 1980. It is obvious that those very documents must have formed the basis of making out the grounds of detention and ex hypothesi these documents were in existence and available for being served upon the detenu along with grounds of detention. Further, documents referred to in the grounds were served as late as on August 4, 1980, with the result that the detenu was required to send his incomplete representation which he did on July 26, 1980. Clearly the safeguard guaranteed under Art. 22(5) of the Constitution was violated. In Kamla Kanyalal Khushalani v. State of Maharashtra, 1981 1 SCC 748 : (AIR 1981 SC 814 ) this Court has observed as follows"It is of the utmost importance that all the necessary safeguards laid down by the Constitution under Article 21 or Article 22(5) should be complied with fully and strictly and any departure from any of the safeguards would void the order of detention. The law of preventive detention has now to satisfy a twofold test : (1) that the protection and the guarantee afforded under Art. 22(5) is complied with, and (2) that the procedure is just and reasonable. If a procedure under Article 21 has to be reasonable, fair and just, then the words Reflective representation appearing inArticle 22(5) must be construed so as to provide a real and meaningful opportunity to the detenu to explain his case to the detaining authority in his representation. In this view of the matter, unless the materials and documents relied on in the order of detention are supplied to the detenu along with the grounds, the supply of grounds simpliciter would give him not a real but merely an illusory opportunity, to make a representation to the detaining authority."6. It is true that under sub-section (3) of S. 3 of the COFEPOSA Act it is provided that for the purpose of Art. 22(5) of the Constitution, the communication to a person detained in pursuance of the detention order of the grounds on which the order has been made shall be made as soon as may be after the detention, but ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days, from the date of detention. This provision under which five days period in normal circumstances and fifteen days period in exceptional circumstances has been provided relates to the supply or communication of the grounds on which the order of detention has been made to the detenu. It has no reference to the documents and material on the basis of which the detention order has been made and it is quite clear that there is no reason why the documents and materials in support of the grounds on the basis of which the detention order has been made, the same being ex hypothesi in existence at the time of the issuance of the detention order and framing of the grounds, should not be supplied to the detenu along with the grounds. Non - supply of such material and documents along with the grounds would clearly amount to a violation of the safeguard guaranteed under Art. 22(5) of the Constitution. Since in the instant case that safeguard afforded to the detenu has been violated, further detention of the detenu would be illegal and void. | 1[ds]5. It was not disputed before me that along with the grounds of detention which were served on the detenu on July 11, 1980, none of the documents, either relied upon or referred to in the grounds, were served upon him. Admittedly, the service of such documents was delayed up to July 19, 1980. It is obvious that those very documents must have formed the basis of making out the grounds of detention and ex hypothesi these documents were in existence and available for being served upon the detenu along with grounds of detention. Further, documents referred to in the grounds were served as late as on August 4, 1980, with the result that the detenu was required to send his incomplete representation which he did on July 26, 1980. Clearly the safeguard guaranteed under Art. 22(5) of the Constitution was violated. In Kamla Kanyalal Khushalani v. State of Maharashtra, 1981 1 SCC 748 : (AIR 1981 SC 814 ) this Court has observed as follows"It is of the utmost importance that all the necessary safeguards laid down by the Constitution under Article 21 or Article 22(5) should be complied with fully and strictly and any departure from any of the safeguards would void the order of detention. The law of preventive detention has now to satisfy a twofold test : (1) that the protection and the guarantee afforded under Art. 22(5) is complied with, and (2) that the procedure is just and reasonable. If a procedure under Article 21 has to be reasonable, fair and just, then the words Reflective representation appearing inArticle 22(5) must be construed so as to provide a real and meaningful opportunity to the detenu to explain his case to the detaining authority in his representation. In this view of the matter, unless the materials and documents relied on in the order of detention are supplied to the detenu along with the grounds, the supply of grounds simpliciter would give him not a real but merely an illusory opportunity, to make a representation to the detaining authority."6. It is true that under(3) of S. 3 of the COFEPOSA Act it is provided that for the purpose of Art. 22(5) of the Constitution, the communication to a person detained in pursuance of the detention order of the grounds on which the order has been made shall be made as soon as may be after the detention, but ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days, from the date of detention. This provision under which five days period in normal circumstances and fifteen days period in exceptional circumstances has been provided relates to the supply or communication of the grounds on which the order of detention has been made to the detenu. It has no reference to the documents and material on the basis of which the detention order has been made and it is quite clear that there is no reason why the documents and materials in support of the grounds on the basis of which the detention order has been made, the same being ex hypothesi in existence at the time of the issuance of the detention order and framing of the grounds, should not be supplied to the detenu along with the grounds. Nonsupply of such material and documents along with the grounds would clearly amount to a violation of the safeguard guaranteed under Art. 22(5) of the Constitution. Since in the instant case that safeguard afforded to the detenu has been violated, further detention of the detenu would be illegal and void. | 1 | 1,270 | 682 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
### Input:
the basis of which the grounds of detention were made out, were served upon the detenu as late as on July 19, 1980. The detenu made an incomplete representation on July 26, 1980-incomplete because copies of documents referred to in the grounds were served on him on August 4, 1980. The detention was confirmed by the Central Government on August 23, 1980 after obtaining the Advisory Boards opinion. It appears that on September 12, 1980 the detenu filed a writ petition by way of habeas corpus seeking release but the same was dismissed by this Court in limine on September 24, 1980. Thereafter another representation was made by the detenu through his wife to the detaining authority (the Administrator) in January, 1981 and that representation was disposed of by rejection on April 25, 1981. The present petition seeking release of the detenu has been filed by the petitioner on April 3, 19813. It is well settled that the dismissal of the earlier writ petition of habeas corpus on September 24, 1980 will not operate as a bar to the maintainability of the present writ Petition and no point in that behalf was raised before me by counsel for the respondents4. Counsel for the petitioner has raised two contentions in support of the writ petition. In the first place he has contended that all the documents, whether relied upon or referred to in the grounds of detention, had not been supplied to the detenu along with the grounds of detention and such failure constituted a breach of the guarantee under Art. 22(5) of the Constitution and since such failure has affected the right of the detenu to make a proper and effective representation any further detention in breach of the safeguard would be illegal. Secondly, it is contended that there has been an undue and unexplained delay of more than four months in the matter of consideration of the representation which the detenu has sent through his wife and further that the said representation has been disposed of by the detaining authority (the Administrator) by not applying its independent mind but after getting influenced by the Central Government decision in the matter. It is unnecessary for me to consider the second contention urged by counsel for the petitioner as, in my view, the first contention is sufficient to dispose of this habeas corpus petition5. It was not disputed before me that along with the grounds of detention which were served on the detenu on July 11, 1980, none of the documents, either relied upon or referred to in the grounds, were served upon him. Admittedly, the service of such documents was delayed up to July 19, 1980. It is obvious that those very documents must have formed the basis of making out the grounds of detention and ex hypothesi these documents were in existence and available for being served upon the detenu along with grounds of detention. Further, documents referred to in the grounds were served as late as on August 4, 1980, with the result that the detenu was required to send his incomplete representation which he did on July 26, 1980. Clearly the safeguard guaranteed under Art. 22(5) of the Constitution was violated. In Kamla Kanyalal Khushalani v. State of Maharashtra, 1981 1 SCC 748 : (AIR 1981 SC 814 ) this Court has observed as follows"It is of the utmost importance that all the necessary safeguards laid down by the Constitution under Article 21 or Article 22(5) should be complied with fully and strictly and any departure from any of the safeguards would void the order of detention. The law of preventive detention has now to satisfy a twofold test : (1) that the protection and the guarantee afforded under Art. 22(5) is complied with, and (2) that the procedure is just and reasonable. If a procedure under Article 21 has to be reasonable, fair and just, then the words Reflective representation appearing inArticle 22(5) must be construed so as to provide a real and meaningful opportunity to the detenu to explain his case to the detaining authority in his representation. In this view of the matter, unless the materials and documents relied on in the order of detention are supplied to the detenu along with the grounds, the supply of grounds simpliciter would give him not a real but merely an illusory opportunity, to make a representation to the detaining authority."6. It is true that under sub-section (3) of S. 3 of the COFEPOSA Act it is provided that for the purpose of Art. 22(5) of the Constitution, the communication to a person detained in pursuance of the detention order of the grounds on which the order has been made shall be made as soon as may be after the detention, but ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days, from the date of detention. This provision under which five days period in normal circumstances and fifteen days period in exceptional circumstances has been provided relates to the supply or communication of the grounds on which the order of detention has been made to the detenu. It has no reference to the documents and material on the basis of which the detention order has been made and it is quite clear that there is no reason why the documents and materials in support of the grounds on the basis of which the detention order has been made, the same being ex hypothesi in existence at the time of the issuance of the detention order and framing of the grounds, should not be supplied to the detenu along with the grounds. Non - supply of such material and documents along with the grounds would clearly amount to a violation of the safeguard guaranteed under Art. 22(5) of the Constitution. Since in the instant case that safeguard afforded to the detenu has been violated, further detention of the detenu would be illegal and void.
### Response:
1
### Explanation:
5. It was not disputed before me that along with the grounds of detention which were served on the detenu on July 11, 1980, none of the documents, either relied upon or referred to in the grounds, were served upon him. Admittedly, the service of such documents was delayed up to July 19, 1980. It is obvious that those very documents must have formed the basis of making out the grounds of detention and ex hypothesi these documents were in existence and available for being served upon the detenu along with grounds of detention. Further, documents referred to in the grounds were served as late as on August 4, 1980, with the result that the detenu was required to send his incomplete representation which he did on July 26, 1980. Clearly the safeguard guaranteed under Art. 22(5) of the Constitution was violated. In Kamla Kanyalal Khushalani v. State of Maharashtra, 1981 1 SCC 748 : (AIR 1981 SC 814 ) this Court has observed as follows"It is of the utmost importance that all the necessary safeguards laid down by the Constitution under Article 21 or Article 22(5) should be complied with fully and strictly and any departure from any of the safeguards would void the order of detention. The law of preventive detention has now to satisfy a twofold test : (1) that the protection and the guarantee afforded under Art. 22(5) is complied with, and (2) that the procedure is just and reasonable. If a procedure under Article 21 has to be reasonable, fair and just, then the words Reflective representation appearing inArticle 22(5) must be construed so as to provide a real and meaningful opportunity to the detenu to explain his case to the detaining authority in his representation. In this view of the matter, unless the materials and documents relied on in the order of detention are supplied to the detenu along with the grounds, the supply of grounds simpliciter would give him not a real but merely an illusory opportunity, to make a representation to the detaining authority."6. It is true that under(3) of S. 3 of the COFEPOSA Act it is provided that for the purpose of Art. 22(5) of the Constitution, the communication to a person detained in pursuance of the detention order of the grounds on which the order has been made shall be made as soon as may be after the detention, but ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days, from the date of detention. This provision under which five days period in normal circumstances and fifteen days period in exceptional circumstances has been provided relates to the supply or communication of the grounds on which the order of detention has been made to the detenu. It has no reference to the documents and material on the basis of which the detention order has been made and it is quite clear that there is no reason why the documents and materials in support of the grounds on the basis of which the detention order has been made, the same being ex hypothesi in existence at the time of the issuance of the detention order and framing of the grounds, should not be supplied to the detenu along with the grounds. Nonsupply of such material and documents along with the grounds would clearly amount to a violation of the safeguard guaranteed under Art. 22(5) of the Constitution. Since in the instant case that safeguard afforded to the detenu has been violated, further detention of the detenu would be illegal and void.
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Rampal Singh Vs. Kr. Satyavir & Another | the place where the accounts were kept. Sharmas story was that Gupta gave original parchas or chits signed by Rampal Singh of which he made a note. He showed that note to Khanna and respondent No. 1. Khanna directed him to get the original chits. He approached Gupta who expressed his inability to give the original to him. However, Gupta said that he would take them to Khanna and show them to him. This was done by him and the chits were shown to Khanna in Sharmas presence. Khanna then asked Gupta to leave the documents with him and he would return them after seeing them. Gupta left the original chits with Khanna which were forty in number. Khanna put them in a drawer and later after studying them told respondent No. 1 that he had a strong case because most of the chits had been signed by the appellant. Sharma could not say where those chits were when he gave evidence in Court. When asked about the date, on which Gupta gave Khanna those original chits Sharma stated that they were shown to him on April 15 or 16, 1969 after the petition had been prepared. Khanna who appeared as P. W. 10 stated that Gupta was his class fellow. He gave those original chits to him, some of which were signed by the appellant, some by Parveen Singh Pradhan and some by Mangal Singh. According to him the chits had been lost and although he made a search for them he could not find them. It was in the month of July that he discovered the loss. He had put them in his table drawer in his chamber, in Guptas presence, which was not locked. He had separated the chits bearing the signatures of the appellant and the rest. The following part of his statement may be reproduced:-"In July Satya Vir came and told me the parchis would be summoned in the High Court. Then I found them missing. I told him I could not find them. I told him to summon them from Budhmal, as I might be able to trace them after searching. I did not tell Budhmal that the parchis had disappeared. After that Satya Vir kept coming to ask if I had found them, I did not lodge any report with the police, as I could not be sure what had happened to them". Gupta, as stated before, maintained that it was false to say that he had showed Sharma any original chits or that he went with him to Khanna. The learned Judge even allowed him to be cross-examined by counsel for respondent No. 1 for whom he was appearing as a witness for reasons which are not mentioned at all. 8. The above evidence relating to the disappearance of the original chits for the material period which, it is alleged, bore the signatures of the appellant in the manner deposed to by Khanna creates a good deal of doubt in our mind about the soundness of the conclusion of the learned Judge which was based mainly on the falsity of the books of account of the Vijay Engineering Corporation and the other facts and circumstances which have been detailed before. It is difficult to accept the version of Khanna that the original chits had disappeared in the manner stated by him. It seems to us that the original chits were deliberately withheld after having been secreted away or taken from Gupta who was prepared to help respondent No. 1 in every way. The various persons concerned in this matter are also intimately connected. Gupta is an old class-fellow of Khanna who is not only a friend of respondent No. 1 but also his legal advisor in the matter of institution of the-election Petition. It seems to us that there has been a lot of manipulation of evidence which was not entirely for the benefit of the appellant. The very fact that the original chits disappeared or were withheld by the legal advisor of respondent No. 1 or other persons who were concerned with the conduct of his case showed that their disappearance could not have been for the benefit of the appellant. It is not shown that he had anything to gain by the disappearance of the original chits. On the contrary their production might have told a different story and completely demolished the whole case of respondent No. 1. 9. In the above view of the matter we consider it wholly unnecessary to examine the question whether Mahipal Singh was closely associated with the appellant or not and the effect of non-production of Mohinderpal Singh. We may, however, point out that the observations of the learned Judge with regard to the bill for Rs. 1700.60 which was produced along with the return of election expenses by the appellant and about the part payment of the bill made on February 21, 1969 which was not in round figures, are prompted mostly by the whole atmosphere of suspicion which was quite naturally generated owing to the forgeries which were found in the books of account, credit memos, bill books etc., of the Vijay Engineering Corporation. But the point which is of real consequence is that the Court cannot be satisfied beyond a reasonable doubt that the manipulation of various accounts and documents was done by Gupta or some other employee of the said firm solely for the appellants benefit . The only piece of evidence which would have concluded he matter, namely, the original chits was deliberately with held or done away with not at the instance of the appellant but by those who were acting in the interest of respondent No. 1.In such a state of affairs it would not be safe to base the conclusion on a matter involving a corrupt practice which has serious consequences on such an unreliable, fabricated and manipulated evidence. The learned Judges unfortunately did not consider all these matters in their proper perspective. 10. We woul | 1[ds]8. The above evidence relating to the disappearance of the original chits for the material period which, it is alleged, bore the signatures of the appellant in the manner deposed to by Khanna creates a good deal of doubt in our mind about the soundness of the conclusion of the learned Judge which was based mainly on the falsity of the books of account of the Vijay Engineering Corporation and the other facts and circumstances which have been detailed before. It is difficult to accept the version of Khanna that the original chits had disappeared in the manner stated by him. It seems to us that the original chits were deliberately withheld after having been secreted away or taken from Gupta who was prepared to help respondent No. 1 in every way. The various persons concerned in this matter are also intimately connected. Gupta is an oldw of Khanna who is not only a friend of respondent No. 1 but also his legal advisor in the matter of institution ofn Petition. It seems to us that there has been a lot of manipulation of evidence which was not entirely for the benefit of the appellant. The very fact that the original chits disappeared or were withheld by the legal advisor of respondent No. 1 or other persons who were concerned with the conduct of his case showed that their disappearance could not have been for the benefit of the appellant. It is not shown that he had anything to gain by the disappearance of the original chits. On the contrary their production might have told a different story and completely demolished the whole case of respondent No. 1. Wemay, however, point out that the observations of the learned Judge with regard to the bill for Rs. 1700.60 which was produced along with the return of election expenses by the appellant and about the part payment of the bill made on February 21, 1969 which was not in round figures, are prompted mostly by the whole atmosphere of suspicion which was quite naturally generated owing to the forgeries which were found in the books of account, credit memos, bill books etc., of the Vijay Engineering Corporation. But the point which is of real consequence is that the Court cannot be satisfied beyond a reasonable doubt that the manipulation of various accounts and documents was done by Gupta or some other employee of the said firm solely for the appellants benefit . The only piece of evidence which would have concluded he matter, namely, the original chits was deliberately with held or done away with not at the instance of the appellant but by those who were acting in the interest of respondent No. 1.In such a state of affairs it would not be safe to base the conclusion on a matter involving a corrupt practice which has serious consequences on such an unreliable, fabricated and manipulated evidence. The learned Judges unfortunately did not consider all these matters in their proper perspective. | 1 | 3,452 | 536 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
### Input:
the place where the accounts were kept. Sharmas story was that Gupta gave original parchas or chits signed by Rampal Singh of which he made a note. He showed that note to Khanna and respondent No. 1. Khanna directed him to get the original chits. He approached Gupta who expressed his inability to give the original to him. However, Gupta said that he would take them to Khanna and show them to him. This was done by him and the chits were shown to Khanna in Sharmas presence. Khanna then asked Gupta to leave the documents with him and he would return them after seeing them. Gupta left the original chits with Khanna which were forty in number. Khanna put them in a drawer and later after studying them told respondent No. 1 that he had a strong case because most of the chits had been signed by the appellant. Sharma could not say where those chits were when he gave evidence in Court. When asked about the date, on which Gupta gave Khanna those original chits Sharma stated that they were shown to him on April 15 or 16, 1969 after the petition had been prepared. Khanna who appeared as P. W. 10 stated that Gupta was his class fellow. He gave those original chits to him, some of which were signed by the appellant, some by Parveen Singh Pradhan and some by Mangal Singh. According to him the chits had been lost and although he made a search for them he could not find them. It was in the month of July that he discovered the loss. He had put them in his table drawer in his chamber, in Guptas presence, which was not locked. He had separated the chits bearing the signatures of the appellant and the rest. The following part of his statement may be reproduced:-"In July Satya Vir came and told me the parchis would be summoned in the High Court. Then I found them missing. I told him I could not find them. I told him to summon them from Budhmal, as I might be able to trace them after searching. I did not tell Budhmal that the parchis had disappeared. After that Satya Vir kept coming to ask if I had found them, I did not lodge any report with the police, as I could not be sure what had happened to them". Gupta, as stated before, maintained that it was false to say that he had showed Sharma any original chits or that he went with him to Khanna. The learned Judge even allowed him to be cross-examined by counsel for respondent No. 1 for whom he was appearing as a witness for reasons which are not mentioned at all. 8. The above evidence relating to the disappearance of the original chits for the material period which, it is alleged, bore the signatures of the appellant in the manner deposed to by Khanna creates a good deal of doubt in our mind about the soundness of the conclusion of the learned Judge which was based mainly on the falsity of the books of account of the Vijay Engineering Corporation and the other facts and circumstances which have been detailed before. It is difficult to accept the version of Khanna that the original chits had disappeared in the manner stated by him. It seems to us that the original chits were deliberately withheld after having been secreted away or taken from Gupta who was prepared to help respondent No. 1 in every way. The various persons concerned in this matter are also intimately connected. Gupta is an old class-fellow of Khanna who is not only a friend of respondent No. 1 but also his legal advisor in the matter of institution of the-election Petition. It seems to us that there has been a lot of manipulation of evidence which was not entirely for the benefit of the appellant. The very fact that the original chits disappeared or were withheld by the legal advisor of respondent No. 1 or other persons who were concerned with the conduct of his case showed that their disappearance could not have been for the benefit of the appellant. It is not shown that he had anything to gain by the disappearance of the original chits. On the contrary their production might have told a different story and completely demolished the whole case of respondent No. 1. 9. In the above view of the matter we consider it wholly unnecessary to examine the question whether Mahipal Singh was closely associated with the appellant or not and the effect of non-production of Mohinderpal Singh. We may, however, point out that the observations of the learned Judge with regard to the bill for Rs. 1700.60 which was produced along with the return of election expenses by the appellant and about the part payment of the bill made on February 21, 1969 which was not in round figures, are prompted mostly by the whole atmosphere of suspicion which was quite naturally generated owing to the forgeries which were found in the books of account, credit memos, bill books etc., of the Vijay Engineering Corporation. But the point which is of real consequence is that the Court cannot be satisfied beyond a reasonable doubt that the manipulation of various accounts and documents was done by Gupta or some other employee of the said firm solely for the appellants benefit . The only piece of evidence which would have concluded he matter, namely, the original chits was deliberately with held or done away with not at the instance of the appellant but by those who were acting in the interest of respondent No. 1.In such a state of affairs it would not be safe to base the conclusion on a matter involving a corrupt practice which has serious consequences on such an unreliable, fabricated and manipulated evidence. The learned Judges unfortunately did not consider all these matters in their proper perspective. 10. We woul
### Response:
1
### Explanation:
8. The above evidence relating to the disappearance of the original chits for the material period which, it is alleged, bore the signatures of the appellant in the manner deposed to by Khanna creates a good deal of doubt in our mind about the soundness of the conclusion of the learned Judge which was based mainly on the falsity of the books of account of the Vijay Engineering Corporation and the other facts and circumstances which have been detailed before. It is difficult to accept the version of Khanna that the original chits had disappeared in the manner stated by him. It seems to us that the original chits were deliberately withheld after having been secreted away or taken from Gupta who was prepared to help respondent No. 1 in every way. The various persons concerned in this matter are also intimately connected. Gupta is an oldw of Khanna who is not only a friend of respondent No. 1 but also his legal advisor in the matter of institution ofn Petition. It seems to us that there has been a lot of manipulation of evidence which was not entirely for the benefit of the appellant. The very fact that the original chits disappeared or were withheld by the legal advisor of respondent No. 1 or other persons who were concerned with the conduct of his case showed that their disappearance could not have been for the benefit of the appellant. It is not shown that he had anything to gain by the disappearance of the original chits. On the contrary their production might have told a different story and completely demolished the whole case of respondent No. 1. Wemay, however, point out that the observations of the learned Judge with regard to the bill for Rs. 1700.60 which was produced along with the return of election expenses by the appellant and about the part payment of the bill made on February 21, 1969 which was not in round figures, are prompted mostly by the whole atmosphere of suspicion which was quite naturally generated owing to the forgeries which were found in the books of account, credit memos, bill books etc., of the Vijay Engineering Corporation. But the point which is of real consequence is that the Court cannot be satisfied beyond a reasonable doubt that the manipulation of various accounts and documents was done by Gupta or some other employee of the said firm solely for the appellants benefit . The only piece of evidence which would have concluded he matter, namely, the original chits was deliberately with held or done away with not at the instance of the appellant but by those who were acting in the interest of respondent No. 1.In such a state of affairs it would not be safe to base the conclusion on a matter involving a corrupt practice which has serious consequences on such an unreliable, fabricated and manipulated evidence. The learned Judges unfortunately did not consider all these matters in their proper perspective.
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Seth Sheo Prasad (Decd., By His Legal Representatives) Vs. State of Uttar Pradesh and Others | SHAH, J. 1. A firm styled "Lallamal Hardeo Das Cotton Spinning Mills Company", hereinafter called the "firm", commenced at Hathras the business of manufacturing cotton yarn in a factory owned by it. Tn 1944 a partner of the firm filed a suit in the Court of the Civil Judge, Agra, for dissolution of the partnership and for accounts. During the pendency of the suit, the court appointed a receiver of the business of the firm. On July 21, 1949, the Government of U.P. passed an order purporting to exercise power under section 3(f) of the U.P. Industrial Disputes Act, 1949, appointing the appellant, Seth Sheo Prasad, "authorised controller" of the undertaking of the firm and directing him to take over possession of the factory to the exclusion of the partners, the receiver and the managers and to run the undertaking subject to the general supervision of the District Magistrate of Aligarh. The Union of India passed an order in supersession of the order of the Government of U.P. purporting to exercise the power under section 3(4) of the Essential Supplies (Temporary Powers) Act, 1946, appointing the appellant "authorised controller", and directed him to run the factory on the same terms and remuneration as ordered by the Government of U.P. 2. The appellant conducted the undertaking between July, 1949, and February, 1953, and the goods manufactured in the factory were sold by him as "authorised controller". In a petition under Article 32 of the Constitution filed in this court, the orders passed by the Government of U.P. and by the Central Government appointing the appellant "authorised controller" and empowering him to manage the undertaking of the factory were "quashed as illegal and ultra vires".The Sales Tax Officer assessed the firm as a registered dealer for payment of sales tax under the U.P. Sales Tax Act, 1948, for the assessment years 1949-50 to 1953-54 in respect of the turnover from sale of yarn produced by the factory, and a sum exceeding Rs. 2 lakhs was assessed as tax. Only a small amount out of the tax assessed was recovered and for the balance the Sales Tax Officer started proceedings for recovery against nine out of the sixteen partners of the firm. Those partners filed petitions in the High Court of Allahabad challenging the right of the Sales Tax Officer to recover the tax, and the High Court quashed the proceedings for recovery of sales tax from the applicants. The Sales Tax Officer thereafter by notice dated April 2, 1959, called upon the appellant to pay Rs. 1, 01, 487.16 paise as sales tax due by the firm. The appellant then moved a petition in the High Court of Allahabad for an order quashing the notice dated April 2, 1959, and the recovery proceeding. It was the case of the appellant that in selling the products of the factory, he was acting as authorised controller under the orders first of the State Government and thereafter of the Central Government and not on his own behalf and that the proceeding against him for recovery of tax assessed against the firm was illegal. A Single Judge of the High Court rejected the application and the order was confirmed in appeal. 3. The appellant sold goods produced in the factory as "authorised controller", appointed to run the undertaking of the firm. The Sales Tax Officer did not assess the appellant in his capacity as authorised controller. The proceedings for assessment were taken against the firm and the Sales Tax Officer sought to recover the tax assessed against the firm from the appellant. The High Court distinguished the earlier judgments relating to the liability of the partners of the firm to pay tax assessed against the firm on the ground that the "appellant being instrumental in selling the goods could be properly rendered liable to pay the tax unpaid".We do not propose to consider at this stage whether in the circumstances of the case any distinction existed between the liability of the appellant and of the other partners who were absolved by orders of the court to pay tax assessed against the firm. It may be recalled that a suit initially a court receiver was appointed and then the appellant was appointed "authorised controller" to administer the undertaking of the firm. The High Court did not consider whether during the relevant years of assessment there existed any taxable entity which could be then the appellant was assessed to tax they assumed that because the appellant was at one time a partner, and he had entered into the transactions of sale as "authorised controller", liability to pay tax assessed against the firm could be enforced against him. The assumption is unwarranted. The appellant has not been assessed to pay tax as an authorised controller, and therefore the circumstance that the turnover which was assessed to tax included the price of goods sold by the appellant as authorised controller was irrelevant. The only circumstance that could be taken into account in enforcing the liability by the orders of assessment was that the appellant was at one time a partner of the firm. But before liability on that account can be enforced, it was necessary to decide whether during the relevant years of assessment the partnership agreement was in force and that the appellant was in those years a partner of a subsisting firm. That the High Court has foiled to do. We are unable, therefore, to maintain the order of the High Court. | 1[ds].We do not propose to consider at this stage whether in the circumstances of the case any distinction existed between the liability of the appellant and of the other partners who were absolved by orders of the court to pay tax assessed against the firm. It may be recalled that a suit initially a court receiver was appointed and then the appellant was appointed "authorised controller" to administer the undertaking of the firm. The High Court did not consider whether during the relevant years of assessment there existed any taxable entity which could be then the appellant was assessed to tax they assumed that because the appellant was at one time a partner, and he had entered into the transactions of sale as "authorised controller", liability to pay tax assessed against the firm could be enforced against him. The assumption is unwarranted. The appellant has not been assessed to pay tax as an authorised controller, and therefore the circumstance that the turnover which was assessed to tax included the price of goods sold by the appellant as authorised controller was irrelevant. The only circumstance that could be taken into account in enforcing the liability by the orders of assessment was that the appellant was at one time a partner of the firm.But before liability on that account can be enforced, it was necessary to decide whether during the relevant years of assessment the partnership agreement was in force and that the appellant was in those years a partner of a subsisting firm.That the High Court has foiled to do. We are unable, therefore, to maintain the order of the High Court. | 1 | 1,021 | 292 | ### 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:
SHAH, J. 1. A firm styled "Lallamal Hardeo Das Cotton Spinning Mills Company", hereinafter called the "firm", commenced at Hathras the business of manufacturing cotton yarn in a factory owned by it. Tn 1944 a partner of the firm filed a suit in the Court of the Civil Judge, Agra, for dissolution of the partnership and for accounts. During the pendency of the suit, the court appointed a receiver of the business of the firm. On July 21, 1949, the Government of U.P. passed an order purporting to exercise power under section 3(f) of the U.P. Industrial Disputes Act, 1949, appointing the appellant, Seth Sheo Prasad, "authorised controller" of the undertaking of the firm and directing him to take over possession of the factory to the exclusion of the partners, the receiver and the managers and to run the undertaking subject to the general supervision of the District Magistrate of Aligarh. The Union of India passed an order in supersession of the order of the Government of U.P. purporting to exercise the power under section 3(4) of the Essential Supplies (Temporary Powers) Act, 1946, appointing the appellant "authorised controller", and directed him to run the factory on the same terms and remuneration as ordered by the Government of U.P. 2. The appellant conducted the undertaking between July, 1949, and February, 1953, and the goods manufactured in the factory were sold by him as "authorised controller". In a petition under Article 32 of the Constitution filed in this court, the orders passed by the Government of U.P. and by the Central Government appointing the appellant "authorised controller" and empowering him to manage the undertaking of the factory were "quashed as illegal and ultra vires".The Sales Tax Officer assessed the firm as a registered dealer for payment of sales tax under the U.P. Sales Tax Act, 1948, for the assessment years 1949-50 to 1953-54 in respect of the turnover from sale of yarn produced by the factory, and a sum exceeding Rs. 2 lakhs was assessed as tax. Only a small amount out of the tax assessed was recovered and for the balance the Sales Tax Officer started proceedings for recovery against nine out of the sixteen partners of the firm. Those partners filed petitions in the High Court of Allahabad challenging the right of the Sales Tax Officer to recover the tax, and the High Court quashed the proceedings for recovery of sales tax from the applicants. The Sales Tax Officer thereafter by notice dated April 2, 1959, called upon the appellant to pay Rs. 1, 01, 487.16 paise as sales tax due by the firm. The appellant then moved a petition in the High Court of Allahabad for an order quashing the notice dated April 2, 1959, and the recovery proceeding. It was the case of the appellant that in selling the products of the factory, he was acting as authorised controller under the orders first of the State Government and thereafter of the Central Government and not on his own behalf and that the proceeding against him for recovery of tax assessed against the firm was illegal. A Single Judge of the High Court rejected the application and the order was confirmed in appeal. 3. The appellant sold goods produced in the factory as "authorised controller", appointed to run the undertaking of the firm. The Sales Tax Officer did not assess the appellant in his capacity as authorised controller. The proceedings for assessment were taken against the firm and the Sales Tax Officer sought to recover the tax assessed against the firm from the appellant. The High Court distinguished the earlier judgments relating to the liability of the partners of the firm to pay tax assessed against the firm on the ground that the "appellant being instrumental in selling the goods could be properly rendered liable to pay the tax unpaid".We do not propose to consider at this stage whether in the circumstances of the case any distinction existed between the liability of the appellant and of the other partners who were absolved by orders of the court to pay tax assessed against the firm. It may be recalled that a suit initially a court receiver was appointed and then the appellant was appointed "authorised controller" to administer the undertaking of the firm. The High Court did not consider whether during the relevant years of assessment there existed any taxable entity which could be then the appellant was assessed to tax they assumed that because the appellant was at one time a partner, and he had entered into the transactions of sale as "authorised controller", liability to pay tax assessed against the firm could be enforced against him. The assumption is unwarranted. The appellant has not been assessed to pay tax as an authorised controller, and therefore the circumstance that the turnover which was assessed to tax included the price of goods sold by the appellant as authorised controller was irrelevant. The only circumstance that could be taken into account in enforcing the liability by the orders of assessment was that the appellant was at one time a partner of the firm. But before liability on that account can be enforced, it was necessary to decide whether during the relevant years of assessment the partnership agreement was in force and that the appellant was in those years a partner of a subsisting firm. That the High Court has foiled to do. We are unable, therefore, to maintain the order of the High Court.
### Response:
1
### Explanation:
.We do not propose to consider at this stage whether in the circumstances of the case any distinction existed between the liability of the appellant and of the other partners who were absolved by orders of the court to pay tax assessed against the firm. It may be recalled that a suit initially a court receiver was appointed and then the appellant was appointed "authorised controller" to administer the undertaking of the firm. The High Court did not consider whether during the relevant years of assessment there existed any taxable entity which could be then the appellant was assessed to tax they assumed that because the appellant was at one time a partner, and he had entered into the transactions of sale as "authorised controller", liability to pay tax assessed against the firm could be enforced against him. The assumption is unwarranted. The appellant has not been assessed to pay tax as an authorised controller, and therefore the circumstance that the turnover which was assessed to tax included the price of goods sold by the appellant as authorised controller was irrelevant. The only circumstance that could be taken into account in enforcing the liability by the orders of assessment was that the appellant was at one time a partner of the firm.But before liability on that account can be enforced, it was necessary to decide whether during the relevant years of assessment the partnership agreement was in force and that the appellant was in those years a partner of a subsisting firm.That the High Court has foiled to do. We are unable, therefore, to maintain the order of the High Court.
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Eregowda Vs. Divisional Manager, United India Insurance Co. Ltd. and Ors | 1. Leave granted. The challenge in this appeal is to an order of the High Court of Karnataka dated 20th July, 2010 passed in M.F.A. No. 9946 of 2005 by which the claim of higher compensation made by the Appellant was rejected and the compensation awarded by the Workmens Compensation Commissioner and Labour Officer, Dairy Circle, Bangalore was affirmed.2. The Appellant is a driver by profession and in an accident that had occurred on 21st December, 1999 he had suffered certain injuries resulting in the following disabilities as found by the Medical Expert who had occasion to examine and treat the Appellant:"1) Wasting & Weakness of Muscles of left upper limb.2) Tenderness & Deformity of left forearm.3) 2 operated scars over left forearm.4) Restriction of Movements of left writs by last 10 degree and left forearm by last 20 degrees.5) Shortening of 2 cms. Of left upper limb.The Radiological examination showed the following:1) Malunited collar fracture left forearm2) Absence of lower end of left ulna with secondary arthritis left wrist with deceased interosseous space left forearm."3. On the basis of the aforesaid injuries, the doctor had assessed the physical disability suffered to be to the extent of 52%. Accordingly, compensation was worked out by the learned Commissioner by taking into account the loss of earning capacity to be 50% of the income that the Appellant was earning which was quantified at Rs. 4,500/- per month.4. We have heard Shri V.N. Raghupathy, learned Counsel for the Appellant. There is none to oppose the present appeal.5. We have perused the medical evidence on record. Having regard to the same and the nature and extent of the injuries suffered which have been extracted above we are of the view that the Appellant would not be able to discharge the duties of driver any further. Though the physical disabilities in the present case has been assessed at 52%, the loss of earning capacity would be 100%. | 1[ds]4. We have heard Shri V.N. Raghupathy, learned Counsel for the Appellant. There is none to oppose the present appeal5. We have perused the medical evidence on record. Having regard to the same and the nature and extent of the injuries suffered which have been extracted above we are of the view that the Appellant would not be able to discharge the duties of driver any further. Though the physical disabilities in the present case has been assessed at 52%, the loss of earning capacity would be 100%. | 1 | 362 | 103 | ### 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. Leave granted. The challenge in this appeal is to an order of the High Court of Karnataka dated 20th July, 2010 passed in M.F.A. No. 9946 of 2005 by which the claim of higher compensation made by the Appellant was rejected and the compensation awarded by the Workmens Compensation Commissioner and Labour Officer, Dairy Circle, Bangalore was affirmed.2. The Appellant is a driver by profession and in an accident that had occurred on 21st December, 1999 he had suffered certain injuries resulting in the following disabilities as found by the Medical Expert who had occasion to examine and treat the Appellant:"1) Wasting & Weakness of Muscles of left upper limb.2) Tenderness & Deformity of left forearm.3) 2 operated scars over left forearm.4) Restriction of Movements of left writs by last 10 degree and left forearm by last 20 degrees.5) Shortening of 2 cms. Of left upper limb.The Radiological examination showed the following:1) Malunited collar fracture left forearm2) Absence of lower end of left ulna with secondary arthritis left wrist with deceased interosseous space left forearm."3. On the basis of the aforesaid injuries, the doctor had assessed the physical disability suffered to be to the extent of 52%. Accordingly, compensation was worked out by the learned Commissioner by taking into account the loss of earning capacity to be 50% of the income that the Appellant was earning which was quantified at Rs. 4,500/- per month.4. We have heard Shri V.N. Raghupathy, learned Counsel for the Appellant. There is none to oppose the present appeal.5. We have perused the medical evidence on record. Having regard to the same and the nature and extent of the injuries suffered which have been extracted above we are of the view that the Appellant would not be able to discharge the duties of driver any further. Though the physical disabilities in the present case has been assessed at 52%, the loss of earning capacity would be 100%.
### Response:
1
### Explanation:
4. We have heard Shri V.N. Raghupathy, learned Counsel for the Appellant. There is none to oppose the present appeal5. We have perused the medical evidence on record. Having regard to the same and the nature and extent of the injuries suffered which have been extracted above we are of the view that the Appellant would not be able to discharge the duties of driver any further. Though the physical disabilities in the present case has been assessed at 52%, the loss of earning capacity would be 100%.
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MOHD RASHID Vs. THE DIRECTOR LOCAL BODIES NEW SECRETARIAT THE DIRECTOR | the post of Admn. Officer/AA&C (2016) was held as under: table (v) The promotion to the post of Admn. Officer/AA&C (2017) was held as under: table (vi) That at present details of Vacancy position of Administrative Officer/AA&C in all three Corporations under Promotion Quota as on 01.07.2019 is as under, which is dealt by the North DMC being Nodal Corporation for promotion for all the three Corporation:- table Note: A DSC is under process, wherein 94 Section Officers, Private Secretaries and Translators are being considered for promotion to the post of Admn. Officer/AA&C. 7. It is also mentioned that seniority list of feeder cadre has not been finalised on account of pendency of the matter before the Tribunal and the High Court and that in terms of directions of the High Court, recommendation of the review DPC has been placed before the High Court and the matter is pending consideration before the High Court. 8. The said affidavit also gives the details of the manner of posts falling under the deputation quota. It is mentioned that each of the three Municipal Corporations deal with the deputation quota at their own level. However, the vacancies of the North DMC are stated to be as under: (vii) Deputation Quota: The posts under deputation quota are being dealt by the concerned Corporation separately at their own level, the vacancy position of North DMC is as under: table Note: As per Recruitment Rules North DMC has already invited applications for fill-up the post of Admn. Officer/AA&C under deputation quota vide circular dated 06.02.2019 and subsequent reminders dated 12.07.2019. 11 applications for appointment to the post of Admn. Officer/AA&C on deputation basis have been received till date. The last date of receipt of application is 31.08.2019. The above said table shows that the vacancy to the post of Admn. Officer/AA&C has been filled up by the department regularly after notification of new Recruitment Rules dated 17.06.2013. 9. Thus, in respect of 25 vacancies falling to the share of the North DMC, it is mentioned that there are 21 vacant posts and that applications have been invited to fill up the deputation quota vide Circular dated 6 th February, 2019. 11 applications have been received though the last date of the receipt of the applications was 31 st August, 2019. 10. In respect of deputation quota in South Delhi Municipal Corporation, it is mentioned in the separate affidavit that out of 32 posts falling to the quota of deputationists, 13 posts are vacant as on 1 st August, 2019. By a separate affidavit filed on behalf of East Delhi Municipal Corporation, it is mentioned that out of 14 sanctioned posts, 5 posts are falling vacant against the deputation quota. 11. From the above information placed on record, we find that the Recruitment Rules providing 50% quota to be filled up by promotion failing which by direct recruitment and another 50% by deputation quota failing which by direct recruitment are being followed by the Municipal Bodies. 12. The appellants who are aspirants for direct recruitment have no right for appointment merely because at one point of time the vacancies were advertised. The candidates such as the appellants cannot claim any right of appointment merely for the reason that they responded to an advertisement published on 12 th September, 2013. Even after completion of the selection process, the candidates even on the merit list do not have any vested right to seek appointment only for the reason that their names appear on the merit list. In Shankarsan Dash v. Union of India (1991) 3 SCC 47 , a Constitution Bench of this Court held that a candidate seeking appointment to a civil post cannot be regarded to have acquired an indefeasible right to appointment in such post merely because of the appearance of his name in the merit list. This Court held as under:- 7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in the State of Haryana v. Subhash Chander Marwaha [(1974) 3 SCC 220 : 1973 SCC (L&S) 488 : (1974) 1 SCR 165 ] ; Neelima Shangla (Miss) v. State of Haryana [(1986) 4 SCC 268 : 1986 SCC (L&S) 759] or Jitender Kumar v. State of Punjab [(1985) 1 SCC 122 : 1985 SCC (L&S) 174 : (1985) 1 SCR 899 ] . 13. Since the selection process has not been completed and keeping in view the mandate of the Statutory Rules, we find that the appellants have no right to dispute the action of the Municipal Bodies to fill up the posts either by way of promotion or by deputation as such posts are being filled up in terms of mandate of the Rules. It is always open to the Municipal Bodies to fill up the vacant posts by way of direct recruitment after the posts by way of promotion and/or deputation quota are not filled up either on the basis of recruitment process already initiated or to be initiated afresh. | 0[ds]11. From the above information placed on record, we find that the Recruitment Rules providing 50% quota to be filled up by promotion failing which by direct recruitment and another 50% by deputation quota failing which by direct recruitment are being followed by the Municipal Bodies12. The appellants who are aspirants for direct recruitment have no right for appointment merely because at one point of time the vacancies were advertised. The candidates such as the appellants cannot claim any right of appointment merely for the reason that they responded to an advertisement published on 12 th September, 2013. Even after completion of the selection process, the candidates even on the merit list do not have any vested right to seek appointment only for the reason that their names appear on the merit list. In Shankarsan Dash v. Union of India (1991) 3 SCC 47 , a Constitution Bench of this Court held that a candidate seeking appointment to a civil post cannot be regarded to have acquired an indefeasible right to appointment in such post merely because of the appearance of his name in the merit list. This Court held as under:-7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in the State of Haryana v. Subhash Chander Marwaha [(1974) 3 SCC 220 : 1973 SCC (L&S) 488 : (1974) 1 SCR 165 ] ; Neelima Shangla (Miss) v. State of Haryana [(1986) 4 SCC 268 : 1986 SCC (L&S) 759] or Jitender Kumar v. State of Punjab [(1985) 1 SCC 122 : 1985 SCC (L&S) 174 : (1985) 1 SCR 899 ]13. Since the selection process has not been completed and keeping in view the mandate of the Statutory Rules, we find that the appellants have no right to dispute the action of the Municipal Bodies to fill up the posts either by way of promotion or by deputation as such posts are being filled up in terms of mandate of the Rules. It is always open to the Municipal Bodies to fill up the vacant posts by way of direct recruitment after the posts by way of promotion and/or deputation quota are not filled up either on the basis of recruitment process already initiated or to be initiated afresh. | 0 | 1,792 | 612 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
### Input:
the post of Admn. Officer/AA&C (2016) was held as under: table (v) The promotion to the post of Admn. Officer/AA&C (2017) was held as under: table (vi) That at present details of Vacancy position of Administrative Officer/AA&C in all three Corporations under Promotion Quota as on 01.07.2019 is as under, which is dealt by the North DMC being Nodal Corporation for promotion for all the three Corporation:- table Note: A DSC is under process, wherein 94 Section Officers, Private Secretaries and Translators are being considered for promotion to the post of Admn. Officer/AA&C. 7. It is also mentioned that seniority list of feeder cadre has not been finalised on account of pendency of the matter before the Tribunal and the High Court and that in terms of directions of the High Court, recommendation of the review DPC has been placed before the High Court and the matter is pending consideration before the High Court. 8. The said affidavit also gives the details of the manner of posts falling under the deputation quota. It is mentioned that each of the three Municipal Corporations deal with the deputation quota at their own level. However, the vacancies of the North DMC are stated to be as under: (vii) Deputation Quota: The posts under deputation quota are being dealt by the concerned Corporation separately at their own level, the vacancy position of North DMC is as under: table Note: As per Recruitment Rules North DMC has already invited applications for fill-up the post of Admn. Officer/AA&C under deputation quota vide circular dated 06.02.2019 and subsequent reminders dated 12.07.2019. 11 applications for appointment to the post of Admn. Officer/AA&C on deputation basis have been received till date. The last date of receipt of application is 31.08.2019. The above said table shows that the vacancy to the post of Admn. Officer/AA&C has been filled up by the department regularly after notification of new Recruitment Rules dated 17.06.2013. 9. Thus, in respect of 25 vacancies falling to the share of the North DMC, it is mentioned that there are 21 vacant posts and that applications have been invited to fill up the deputation quota vide Circular dated 6 th February, 2019. 11 applications have been received though the last date of the receipt of the applications was 31 st August, 2019. 10. In respect of deputation quota in South Delhi Municipal Corporation, it is mentioned in the separate affidavit that out of 32 posts falling to the quota of deputationists, 13 posts are vacant as on 1 st August, 2019. By a separate affidavit filed on behalf of East Delhi Municipal Corporation, it is mentioned that out of 14 sanctioned posts, 5 posts are falling vacant against the deputation quota. 11. From the above information placed on record, we find that the Recruitment Rules providing 50% quota to be filled up by promotion failing which by direct recruitment and another 50% by deputation quota failing which by direct recruitment are being followed by the Municipal Bodies. 12. The appellants who are aspirants for direct recruitment have no right for appointment merely because at one point of time the vacancies were advertised. The candidates such as the appellants cannot claim any right of appointment merely for the reason that they responded to an advertisement published on 12 th September, 2013. Even after completion of the selection process, the candidates even on the merit list do not have any vested right to seek appointment only for the reason that their names appear on the merit list. In Shankarsan Dash v. Union of India (1991) 3 SCC 47 , a Constitution Bench of this Court held that a candidate seeking appointment to a civil post cannot be regarded to have acquired an indefeasible right to appointment in such post merely because of the appearance of his name in the merit list. This Court held as under:- 7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in the State of Haryana v. Subhash Chander Marwaha [(1974) 3 SCC 220 : 1973 SCC (L&S) 488 : (1974) 1 SCR 165 ] ; Neelima Shangla (Miss) v. State of Haryana [(1986) 4 SCC 268 : 1986 SCC (L&S) 759] or Jitender Kumar v. State of Punjab [(1985) 1 SCC 122 : 1985 SCC (L&S) 174 : (1985) 1 SCR 899 ] . 13. Since the selection process has not been completed and keeping in view the mandate of the Statutory Rules, we find that the appellants have no right to dispute the action of the Municipal Bodies to fill up the posts either by way of promotion or by deputation as such posts are being filled up in terms of mandate of the Rules. It is always open to the Municipal Bodies to fill up the vacant posts by way of direct recruitment after the posts by way of promotion and/or deputation quota are not filled up either on the basis of recruitment process already initiated or to be initiated afresh.
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0
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11. From the above information placed on record, we find that the Recruitment Rules providing 50% quota to be filled up by promotion failing which by direct recruitment and another 50% by deputation quota failing which by direct recruitment are being followed by the Municipal Bodies12. The appellants who are aspirants for direct recruitment have no right for appointment merely because at one point of time the vacancies were advertised. The candidates such as the appellants cannot claim any right of appointment merely for the reason that they responded to an advertisement published on 12 th September, 2013. Even after completion of the selection process, the candidates even on the merit list do not have any vested right to seek appointment only for the reason that their names appear on the merit list. In Shankarsan Dash v. Union of India (1991) 3 SCC 47 , a Constitution Bench of this Court held that a candidate seeking appointment to a civil post cannot be regarded to have acquired an indefeasible right to appointment in such post merely because of the appearance of his name in the merit list. This Court held as under:-7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in the State of Haryana v. Subhash Chander Marwaha [(1974) 3 SCC 220 : 1973 SCC (L&S) 488 : (1974) 1 SCR 165 ] ; Neelima Shangla (Miss) v. State of Haryana [(1986) 4 SCC 268 : 1986 SCC (L&S) 759] or Jitender Kumar v. State of Punjab [(1985) 1 SCC 122 : 1985 SCC (L&S) 174 : (1985) 1 SCR 899 ]13. Since the selection process has not been completed and keeping in view the mandate of the Statutory Rules, we find that the appellants have no right to dispute the action of the Municipal Bodies to fill up the posts either by way of promotion or by deputation as such posts are being filled up in terms of mandate of the Rules. It is always open to the Municipal Bodies to fill up the vacant posts by way of direct recruitment after the posts by way of promotion and/or deputation quota are not filled up either on the basis of recruitment process already initiated or to be initiated afresh.
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Tata Cellular Vs. Union of India | There were no strictures against the holding of this company by the name Sterling Computers Ltd. in M&N this Court and the strictures were only against MTNL and United India Periodicals Pvt. Ltd. (UPI) and United Database (India) Pvt. Ltd. (UDI). M/s. Sterling Computers Ltd. had got associated with UPI/UDI in getting a supplementary agreement for publication of telephone directories for the cities of Bombay & Delhi. This supplementary agreement was struck down. The Supreme Court in appeal Sterling Computers Limited v. M&N Publications Limited against the judgment also did not appear to have made any strictures. There was nothing on the record of the respondents to suggest that any CBI enquiry was pending against this company. There was no FIR and no preliminary report adverse to the company and we feel the ghost of CBI has been unnecessarily brought into play. The company appears to have been punished for no sin of its. However, since the company has not complained well will leave the matter at that." It is submitted by Mr. Parasaran that as on the date of the judgment no inquiry was pending. It was only after 10-6-1993 an FIR was filed by CBI when the High Court of Madras was approached for quashing the FIR under Section 482 Cr.P.C. An order by consent was passed. CBI was allowed to proceed with the investigation and complete the same within one year. It was also ordered that there would be no arrest or harassment. Therefore, as on the date of selection there was no adverse report against Sterling Computers 147. On the date of consideration by the Technical Evaluation Committee its position was even better If, therefore, this aspect had been borne in mind it is nor for us to reweigh the claims and come to one conclusion or another. So much for selections 148. A letter dated 27-8-1993 by Department of Communications, Telecom Commission was addressed to the appellants as follows "Department of Telecommunications (Telecom Commission) New Delhi-110 001 Dated 27-8-1993 No. 842-2/92-TM To M/s. Tata Cellular Ltd., Bombay House, 24, Homi Modi Street, Bombay-400 001 (Kind attention Shri Z. A. Baig) Sub : Tender No. 44-21/91-MMC (FIN) for franchise for Cellular mobile telephone service for Bombay, Delhi, Calcutta and Madras Kindly refer this office letter of even No. ..... dated 2-10-1992 informing you that M/s. Tata Cellular Ltd. were provisionally selected for franchise for providing cellular mobile telephone service at Delhi on a non-exclusive basis That matter has been reconsidered in the light of the judgment delivered by the High Court of Delhi in this case and a revised list of provisionally selected bidders in the cities of Bombay, Delhi, Calcutta and Madras has been prepared. The revised list does not include mobile telephone service in any of the four cities. The earlier letter of even number dated 12-10-1992 may therefore be treated as cancelled Sd/- (S. K. Garg) DDG (TM) 27-8-1993" * From this letter we are not able to fathom the reason for omission. As seen above, Tata Cellular was originally selected for Delhi. By implementation of the judgment of the High Court it has been left out. Before doing so, as rightly urged by Mr. Soli J. Sorabjee, this appellant ought to have been heard. Therefore, there is a clear violation of the principle of natural justice. On an overall view we find it has two distinctive qualifications. In that1. It has not borrowed from any commercial bank 2. It has an annual turnover from Indian parameters of Rs. 12, 000/- crores and the annual turnover or the foreign parameters of Rs. 51, 000/- crores. Comparatively speaking, the other companies do not possess such high credentials yet it has been awarded low marks with regard to the reliance on Indian public financial institutions and financial strength of the parameters/partner companies These qualifications could have been validly urged had it been heard. Then, we do not know what decision could have been arrived at 149. India Telecomp had been omitted for the following reasons as indicated in note dated 9-10-1992; "India Telecomp (Partner Telecom Malaysia) Limited experience. Telecom Malaysia already selected as partner of M/s. Usha Martin Inc. Calcutta" We cannot find fault with this reasoning since there can be only one foreign collaborator. It cannot have Telecom Malaysia as its collaborator since Usha Martin has the same foreign collaborator 150. In the case of Ashok Leyland, the nothing, as seen above, is as under"In both cases of (i) M/s. Ashok Leyland and (ii) M/s. Vam Organic Chemicals Ltd. - a joint venture company has not been formed as stipulated in the tender, and there is no indication of the equity structure or the extent of participation of the foreign collaborators" * We cannot interfere with the discretion of the Committee151. In the above two cases, we are obliged to interfere on the ground of arbitrariness and violation of the principle of natural justice confining ourselves to the doctrine of judicial restraint, however, by the application of permissible parameters to set right the decision-making process152. We make it clear that we are not disturbing the other selections since the power of judicial review is not an appeal from the decision. We can not substitute our decision since we do not have the necessary expertise to review153. Lastly, quashing may involve heavy administrative burden and lead to delay, increased and unbudgeted expenditure; more so, in a vital field like telecommunication154. In view of the foregoing, we thus reach the conclusion the Bharati Cellular could not claim the experience of Talkland. This conclusion has come to be arrived at on the basis of the parameters we have set out in relation to the scope of judicial review. We may reiterate that it is not our intention to substitute our opinion to that of the expert. Apart from the fact that the Court is hardly equipped to do so, it would not be desirable either. Where the selection or rejection is arbitrary, certainly this Court would interfere | 1[ds]19. The second ground of attack is bias. In that, Mr. B. R. Nair, Member of production in the Telecom Commission, who was appointed as Member (Service onparticipated. From the Adviser the file was to Member (Service). The note of Mr. Nair is datedHe agreed with the recommendation of TEC that four firms which had some deficiencies should be included in theThey were BPL Systems and Projects, Mobile Telecom Mobile Communications and Indian Cellular. Therefore, BPL was approved by Mr. Nair. Admittedly, Mr. Nairs son is employed in BPL Systems andIn law, there is no degree of bias. Even otherwise in the implementation of the judgment of the High Court of Delhi, if this appellant is to be eliminated, it ought to have been afforded an opportunity. Had that been done it would have pointed out several factors, namely, the omission to consider relevant material, namely, parameter seven, the prejudice caused by the award of marks after the bids were opened. The DoT was obliged to disclose the maximum marks for each criterion at the threshold of the financial bid in the interest of transparency and to ensure a. Insofar as Sterling Cellular is preferred for Delhi that again is arbitrary. There is a CBI inquiry pending against it. Secondly, the foreign exchange is sought to be procured by international roaming and it is awarded 10 marks out ofThe allegation against this respondent that the foreign exchange requirement has not been met is incorrect. The documents filed by the respondent clearly show that there is a surplus of approximately three crore rupees, available from the foreign collaborator, in the first year. The allegation of India Telecomp that the bidder was responding on the basis of one party per city and the proposal for licence for a period of 20 to 25 years is factually incorrect. Equally, to state that this respondent quoted a lower customs duty and thereby got higher marks is incorrect. The financial bid of the respondent shows that this had taken customs duty at 95 per cent for the first year when the backlog of the equipment is to be imported. For the subsequent years, the projection was made on a reduced customs duty in view of the announced policy of the Government to reduce customs duty and to bring them in line with international levels41.The argument that there is a common collaborator of Bharati Cellular and Mobile Telecom Services proceeds on the footing that Bharati Cellular is collaborating with Talkland. That Talkland has a service privately in agreement with Vodaphone Group. Thus, Vodaphone is the common foreign oollaborator of Bharati Cellular and Mobile Telecom. This is notbeing so, this Court will not interfere by exercising its powers under Article 136 of the Constitution of India. The argument about hidden criteria would not affect or benefit this respondent directly or indirectly. Even otherwise, the hidden criteria cannot be impugned. There is no mention of any particular criterion on the basis of which the selection was to be made. At the second stage what was required to be kept in mind were the parameters mentioned in paragraph 2.4. The criteria for selection to each of the four cities had to be provided inter alia because the tenderers did not tender for one city alone but for more than one. The allegatiion of bias on the part of Mr. Nair is withoutthis case Mr. Subhash Nair is only one of the officers in BPL, which has over 5500 employees and 89 officers of his rank in 27 offices all over India, Mr. Nair was not theat all. He was one of the recommending authorities. His involvement in the approval and selection of the tender was indispensable.No doubt, this respondent dropped McCaw as a foreign collaborator. That does not amount to change where one out of two or three collaborators is dropped. This foreign collaborator was required as Condition No. 7 only in financial bid documents not in tender documents. This respondent submitted financial bid onshowing only two of the collaborators. McCaw was not shown as that was already dropped out. Therefore, the High Court rightly held that McCaw was not taken into consideratiion in awarding marks for foreign partners experience. The object of the first stage was not to allot the franchise but to3. The principal objection of the Union of India is that the High Court was not justified in scrutinising the tendering process in such detail. The minute examination is unwarranted because the High Court cannot constitute itself the selecting authority. However, no appeal is preferred, as otherwise, it would have further delayed the introduction of very valuable communication facility in this country. Beyond that, it has no particular interest as to who is selected. However, it becomes necessary to answer the allegations made about the actual selection and whether there was any bias on the part of the selection committee. The selection process was dictated by the exigencies of the situation. It is a question, as to what one could settle for, in the given circumstances. The Government was embarking upon a totally new technology project, for the first time. At that stage, it was impossible to predict what kind of response will there be. Therefore it is impsible to predicate thelimits which could be set or which conditions have to be relaxed or softrned. The allegation of bias, it is held, must be a case of reasonable possibility or likelihood of bias. In this case, there is no such reasonable likelihood. Mr. B. R. Nair was not influenced directly, or, in any other manner, subtle or otherwise. He did not, in fact, participate in any of the significant or crucial stages in the selection process. Even otherwise, the relationship is not such as to give reasonable apprehension ofregards the parameter in relation to project financing it was kept in view by taking into account the estimated number of subscribers, installation charges, monthly rental, any other charges etc. they were included in the competition. The other parameters of the bidders were treated on the same footing as regards this parameter is concerned. Concerning rental, it was specifically averred in the counter before the High Court that the other charges has also been included while calculating quoted rental54. It is not correct to contend that Talklands experience is not relevant. In the United Kingdom the operation of Mobile Cellular System is handled by the network cooperator and a proper service provider, acting together. The licensee is required to perform the combined functions of a network operator as well as service provider. The duties and functions of a licensee are not limited to making available the services as defined. In fact, the principal obligation of the licensee is expressed generally in paragraph 2.1.1. A reading of the other clauses makes it clear that it is incumbent upon the licensee to provide services. Therefore, the experiences of a network operator and the service provider are both important andInternational roaming is a relevant consideration. From the tender document it will be clear that it provides for facility of roaming to visitors, Roaming facility for a tourist is available in the GSM system. Even if this condition has been relaxed in favour of certain bidders, there is nothing wrong. Reliance is placed on G. J. Fernandez v. State ofThe principles deducible from the above are(1) The modern trend points to judicial restraint in administrative action(2) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made(3) The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible(4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts(5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere orsphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides(6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditureBased on these principles we will examine the facts of this case since they commend to us as the correctThen again, one of the prescribed criterion is 2.4.6 which carries 12 marks, namely, the financial strength of the partner company. The annual turnover from Tata Cellular, from Indian parameters was 12, 000 crores and annual turnover of their foreign parameters was 51, 000 crores yet what has been awarded is only 9 marks. As against this Hutchison Max has only an annual turnover of 75 crores and Rupees 6600 crores of foreign parameters yet it has been awarded 12 marks. Equally, Sterling Cellular whose turnover according to its bid document was 77 crores; the foreign parameter is unknown it has also been awarded 9Thus, we find the argument that paragraph 2.4.7, namely, the financial projection of the proposed Cellular Mobile Cellular and the 7th criterion having been left out of consideration cannot beIn the instant case, the first aspect of the matter does not arise.We hold Mr. B. R. Nairs involvement did not vitiate the selection on the ground of bias, Since we have reached this conclusion we are not going to the other questions argued by Mr. F. S. Nariman whether India Telecomp or Tata Cellular could urge this point relating toAfter finding that only three companies qualified for selection onthe following note was made by Mr. G. T. Narayanan, Adviser (Operations)The financial bid which was approved by the apex committee was given to thebidders and these were received and opened onThese were evaluated by the Tender Evaluation Committee (TEC). The evaluation report is placed below. The financial evaluation was done based upon the weightages of the various parameters namely, rental, financing, foreign exchange inflow/outflow, financial strength, experience and purchasefar as the rental and other allied parameters are concerned, there are wide variations of rent, deposit, registration/connection fee. In some cases rent is zero. It was considered by the TEC that these are to be equated to one parameter as equated rental and the method adopted was loading the basic rental and other charges like deposit, interest rate @ 13% perthough Tata Cellular fulfils all the conditions but in bid document they have based their calculations on single operator concept. However, we may, if approved by Telecom Commission andCommittee, make ato operate on abasisAfter the operators are selected, tariff fixation and other licensing terms can be negotiated by the Telecomfinancial bids from thebidders have now been received and examined in the Department. The recommendations of the Evaluation Committee are being forwarded to the members of theCommittee appointed by MOS (C) for examination and making recommendations to the Government regarding final selection of the franchiseesI spoke to Principal Secretary to the Honble Prime Minister with the request to expedite the process. He indicated that the Committee earlier appointed by MOS (C) stands dissolved and a fresh Committee will have to be nominated for considering the financial bids etc. He also indicated that he proposes to put up the case to the Honble Prime Minister for his clearance. It is, therefore, proposed to issue a letter to the members of theCommittee as per draft placed below. The same may please be seen by MOS (C) for approval beforeAs a resultrecommendations, Bharati Cellular got all the four cities. BPL Systems and Project got two out of four cities. Only Skycell got Madras. No fourth party got any city. Having realised that this decision will patently be unacceptable a relaxation was made onone day before the final decision whether those with less than one lakh lines experience could be considered for Calcutta and Madras. Eve, onBharati Cellular was evaluatedSRF France and EMTEL Mauritius. There was no mention of Talkland. OnBharati Cellular was again evaluatedits collaborators SFR France and EMTELis true that during evaluation it was noted that any bidder with less than 10 marks out of 15 for experience would stand disqualified. The cut of one lakh lines was in the context of minimum experience of 10 marks. Bharati Cellular had a collaborator other than Talkland, namely, SFR France. It was mentioned in Bharati Cellulars bid in its tenderthat the number of SFR France was over 80, 000. Byit was estimated to be 1, 10, 000 In August 1992 when the bids were submitted SFR France line experience could reasonably be expected to be above one lakh lines. In addition, SFR had a GSM licence.We are not in a position to accept the contentions of Mr. Harish Salve that these criteria were evolved asto suit some other bidders and knock off others. In a technical matter like this where the Government of India is embarking upon new communication scheme with advance technology all the criteria cannot be postulated in the beginning itself. Where the Committee of Experts thought certain criteria have to be evolved in order to subserve the interest of the scheme it is necessary to have all them set out in the beginning itself. However, the important question remains after the evolution of the criteria whether they have been uniformly and properly applied, as urged by Mr. Ashoke Sen126. A careful perusal of the files shows that the Adviser (Operations) selected Bharati Cellular for franchise, with its foreign collaborators SFR France, EMTEL Mauritius. The same was approved by the Chairman in his final proposal which was ultimately approved onThus, it is clear that at no point of time Talkland ever figured as Bharati Cellulars collaborator. SFR France, the foreign collaborator of Bharati Cellular had GSM Paris area (sic)91, it had 81, 085 subscribers with no GSM experience. The number of subscribers was estimated to go up to 1, 10, 000 byOn the date of submission of the bid it was expected to cross the one lakh mark. The other collaborator EMTEL Mauritius had only an experience of 1982 lines. In order to make Bharati Cellular qualify Talkland is also included as a foreign collaborator. This factually wrong, as noted above, because at no point of time Talkland was thought of as foreign collaborator for Bharati Cellular. Even the, as seen form the file, Talkland is providing marketing, sales, customer care, billing services to both Vodaphone and Cellnet under contracts with both of them. This is evident from the material produced before us. ItWe are unable to support this finding as it clearly ignores that Talkland never figured as acollaborator for Bharati Cellular. Further, ignoring the disjunctive clause, two qualifications were sought to be subsumed to give an undue advantage to Bharatia matter of fact BPL Systems and Projects did submit its application for foreign collaboration onto the Reserve Bank of India. When that application was returned onit came to be sent to SIA onWe do not think BPL Systems and Projects could be faulted on this score. Equally, the argument that the memorandum and articles do not mean cellular business does not merit acceptance at our hand. In fact, the High Court has correctly the main object, namely, to design, develop, fabricate, manufacture, assemble, exporting from and importing into India by self or otherwise dealing and act as consultants and render services in connection with all kinds of telecommunication equipments as including cellular(The alternate submission is the question of even clerical error does not arise here because one month before acceptance Hutchison Max had sent the compliance form. Where the matter is purely technical the court should not exercise the power of judicial review. We find great force in this submission. We are clearly of the opinion that the mistake is in relation to amatter that is in relation to peripheral or collateral matter. There has been every intention to comply with the terms of the bid. For an accidental omission it cannot be punished. We concur with the High Court.On the date of consideration by the Technical Evaluation Committee its position was even better If, therefore, this aspect had been borne in mind it is nor for us to reweigh the claims and come to one conclusion or another. So much forthis letter we are not able to fathom the reason for omission. As seen above, Tata Cellular was originally selected for Delhi. By implementation of the judgment of the High Court it has been left out. Before doing so, as rightly urged by Mr. Soli J. Sorabjee, this appellant ought to have been heard. Therefore, there is a clear violation of the principle of natural justice. On an overall view we find it has two distinctive qualifications. In that1. It has not borrowed from any commercialIn the case of Ashok Leyland, the nothing, as seen above, is as under"In both cases of (i) M/s. Ashok Leyland and (ii) M/s. Vam Organic Chemicals Ltd.a joint venture company has not been formed as stipulated in the tender, and there is no indication of the equity structure or the extent of participation of the foreign collaborators"cannot interfere with the discretion of the Committee151. In the above two cases, we are obliged to interfere on the ground of arbitrariness and violation of the principle of natural justice confining ourselves to the doctrine of judicial restraint, however, by the application of permissible parameters to set right theprocess152. We make it clear that we are not disturbing the other selections since the power of judicial review is not an appeal from the decision. We can not substitute our decision since we do not have the necessary expertise to review153. Lastly, quashing may involve heavy administrative burden and lead to delay, increased and unbudgeted expenditure; more so, in a vital field like telecommunication154. In view of the foregoing, we thus reach the conclusion the Bharati Cellular could not claim the experience of Talkland. This conclusion has come to be arrived at on the basis of the parameters we have set out in relation to the scope of judicial review. We may reiterate that it is not our intention to substitute our opinion to that of the expert. Apart from the fact that the Court is hardly equipped to do so, it would not be desirable either. Where the selection or rejection is arbitrary, certainly this Court would interfere | 1 | 30,799 | 3,452 | ### 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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There were no strictures against the holding of this company by the name Sterling Computers Ltd. in M&N this Court and the strictures were only against MTNL and United India Periodicals Pvt. Ltd. (UPI) and United Database (India) Pvt. Ltd. (UDI). M/s. Sterling Computers Ltd. had got associated with UPI/UDI in getting a supplementary agreement for publication of telephone directories for the cities of Bombay & Delhi. This supplementary agreement was struck down. The Supreme Court in appeal Sterling Computers Limited v. M&N Publications Limited against the judgment also did not appear to have made any strictures. There was nothing on the record of the respondents to suggest that any CBI enquiry was pending against this company. There was no FIR and no preliminary report adverse to the company and we feel the ghost of CBI has been unnecessarily brought into play. The company appears to have been punished for no sin of its. However, since the company has not complained well will leave the matter at that." It is submitted by Mr. Parasaran that as on the date of the judgment no inquiry was pending. It was only after 10-6-1993 an FIR was filed by CBI when the High Court of Madras was approached for quashing the FIR under Section 482 Cr.P.C. An order by consent was passed. CBI was allowed to proceed with the investigation and complete the same within one year. It was also ordered that there would be no arrest or harassment. Therefore, as on the date of selection there was no adverse report against Sterling Computers 147. On the date of consideration by the Technical Evaluation Committee its position was even better If, therefore, this aspect had been borne in mind it is nor for us to reweigh the claims and come to one conclusion or another. So much for selections 148. A letter dated 27-8-1993 by Department of Communications, Telecom Commission was addressed to the appellants as follows "Department of Telecommunications (Telecom Commission) New Delhi-110 001 Dated 27-8-1993 No. 842-2/92-TM To M/s. Tata Cellular Ltd., Bombay House, 24, Homi Modi Street, Bombay-400 001 (Kind attention Shri Z. A. Baig) Sub : Tender No. 44-21/91-MMC (FIN) for franchise for Cellular mobile telephone service for Bombay, Delhi, Calcutta and Madras Kindly refer this office letter of even No. ..... dated 2-10-1992 informing you that M/s. Tata Cellular Ltd. were provisionally selected for franchise for providing cellular mobile telephone service at Delhi on a non-exclusive basis That matter has been reconsidered in the light of the judgment delivered by the High Court of Delhi in this case and a revised list of provisionally selected bidders in the cities of Bombay, Delhi, Calcutta and Madras has been prepared. The revised list does not include mobile telephone service in any of the four cities. The earlier letter of even number dated 12-10-1992 may therefore be treated as cancelled Sd/- (S. K. Garg) DDG (TM) 27-8-1993" * From this letter we are not able to fathom the reason for omission. As seen above, Tata Cellular was originally selected for Delhi. By implementation of the judgment of the High Court it has been left out. Before doing so, as rightly urged by Mr. Soli J. Sorabjee, this appellant ought to have been heard. Therefore, there is a clear violation of the principle of natural justice. On an overall view we find it has two distinctive qualifications. In that1. It has not borrowed from any commercial bank 2. It has an annual turnover from Indian parameters of Rs. 12, 000/- crores and the annual turnover or the foreign parameters of Rs. 51, 000/- crores. Comparatively speaking, the other companies do not possess such high credentials yet it has been awarded low marks with regard to the reliance on Indian public financial institutions and financial strength of the parameters/partner companies These qualifications could have been validly urged had it been heard. Then, we do not know what decision could have been arrived at 149. India Telecomp had been omitted for the following reasons as indicated in note dated 9-10-1992; "India Telecomp (Partner Telecom Malaysia) Limited experience. Telecom Malaysia already selected as partner of M/s. Usha Martin Inc. Calcutta" We cannot find fault with this reasoning since there can be only one foreign collaborator. It cannot have Telecom Malaysia as its collaborator since Usha Martin has the same foreign collaborator 150. In the case of Ashok Leyland, the nothing, as seen above, is as under"In both cases of (i) M/s. Ashok Leyland and (ii) M/s. Vam Organic Chemicals Ltd. - a joint venture company has not been formed as stipulated in the tender, and there is no indication of the equity structure or the extent of participation of the foreign collaborators" * We cannot interfere with the discretion of the Committee151. In the above two cases, we are obliged to interfere on the ground of arbitrariness and violation of the principle of natural justice confining ourselves to the doctrine of judicial restraint, however, by the application of permissible parameters to set right the decision-making process152. We make it clear that we are not disturbing the other selections since the power of judicial review is not an appeal from the decision. We can not substitute our decision since we do not have the necessary expertise to review153. Lastly, quashing may involve heavy administrative burden and lead to delay, increased and unbudgeted expenditure; more so, in a vital field like telecommunication154. In view of the foregoing, we thus reach the conclusion the Bharati Cellular could not claim the experience of Talkland. This conclusion has come to be arrived at on the basis of the parameters we have set out in relation to the scope of judicial review. We may reiterate that it is not our intention to substitute our opinion to that of the expert. Apart from the fact that the Court is hardly equipped to do so, it would not be desirable either. Where the selection or rejection is arbitrary, certainly this Court would interfere
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bid in its tenderthat the number of SFR France was over 80, 000. Byit was estimated to be 1, 10, 000 In August 1992 when the bids were submitted SFR France line experience could reasonably be expected to be above one lakh lines. In addition, SFR had a GSM licence.We are not in a position to accept the contentions of Mr. Harish Salve that these criteria were evolved asto suit some other bidders and knock off others. In a technical matter like this where the Government of India is embarking upon new communication scheme with advance technology all the criteria cannot be postulated in the beginning itself. Where the Committee of Experts thought certain criteria have to be evolved in order to subserve the interest of the scheme it is necessary to have all them set out in the beginning itself. However, the important question remains after the evolution of the criteria whether they have been uniformly and properly applied, as urged by Mr. Ashoke Sen126. A careful perusal of the files shows that the Adviser (Operations) selected Bharati Cellular for franchise, with its foreign collaborators SFR France, EMTEL Mauritius. The same was approved by the Chairman in his final proposal which was ultimately approved onThus, it is clear that at no point of time Talkland ever figured as Bharati Cellulars collaborator. SFR France, the foreign collaborator of Bharati Cellular had GSM Paris area (sic)91, it had 81, 085 subscribers with no GSM experience. The number of subscribers was estimated to go up to 1, 10, 000 byOn the date of submission of the bid it was expected to cross the one lakh mark. The other collaborator EMTEL Mauritius had only an experience of 1982 lines. In order to make Bharati Cellular qualify Talkland is also included as a foreign collaborator. This factually wrong, as noted above, because at no point of time Talkland was thought of as foreign collaborator for Bharati Cellular. Even the, as seen form the file, Talkland is providing marketing, sales, customer care, billing services to both Vodaphone and Cellnet under contracts with both of them. This is evident from the material produced before us. ItWe are unable to support this finding as it clearly ignores that Talkland never figured as acollaborator for Bharati Cellular. Further, ignoring the disjunctive clause, two qualifications were sought to be subsumed to give an undue advantage to Bharatia matter of fact BPL Systems and Projects did submit its application for foreign collaboration onto the Reserve Bank of India. When that application was returned onit came to be sent to SIA onWe do not think BPL Systems and Projects could be faulted on this score. Equally, the argument that the memorandum and articles do not mean cellular business does not merit acceptance at our hand. In fact, the High Court has correctly the main object, namely, to design, develop, fabricate, manufacture, assemble, exporting from and importing into India by self or otherwise dealing and act as consultants and render services in connection with all kinds of telecommunication equipments as including cellular(The alternate submission is the question of even clerical error does not arise here because one month before acceptance Hutchison Max had sent the compliance form. Where the matter is purely technical the court should not exercise the power of judicial review. We find great force in this submission. We are clearly of the opinion that the mistake is in relation to amatter that is in relation to peripheral or collateral matter. There has been every intention to comply with the terms of the bid. For an accidental omission it cannot be punished. We concur with the High Court.On the date of consideration by the Technical Evaluation Committee its position was even better If, therefore, this aspect had been borne in mind it is nor for us to reweigh the claims and come to one conclusion or another. So much forthis letter we are not able to fathom the reason for omission. As seen above, Tata Cellular was originally selected for Delhi. By implementation of the judgment of the High Court it has been left out. Before doing so, as rightly urged by Mr. Soli J. Sorabjee, this appellant ought to have been heard. Therefore, there is a clear violation of the principle of natural justice. On an overall view we find it has two distinctive qualifications. In that1. It has not borrowed from any commercialIn the case of Ashok Leyland, the nothing, as seen above, is as under"In both cases of (i) M/s. Ashok Leyland and (ii) M/s. Vam Organic Chemicals Ltd.a joint venture company has not been formed as stipulated in the tender, and there is no indication of the equity structure or the extent of participation of the foreign collaborators"cannot interfere with the discretion of the Committee151. In the above two cases, we are obliged to interfere on the ground of arbitrariness and violation of the principle of natural justice confining ourselves to the doctrine of judicial restraint, however, by the application of permissible parameters to set right theprocess152. We make it clear that we are not disturbing the other selections since the power of judicial review is not an appeal from the decision. We can not substitute our decision since we do not have the necessary expertise to review153. Lastly, quashing may involve heavy administrative burden and lead to delay, increased and unbudgeted expenditure; more so, in a vital field like telecommunication154. In view of the foregoing, we thus reach the conclusion the Bharati Cellular could not claim the experience of Talkland. This conclusion has come to be arrived at on the basis of the parameters we have set out in relation to the scope of judicial review. We may reiterate that it is not our intention to substitute our opinion to that of the expert. Apart from the fact that the Court is hardly equipped to do so, it would not be desirable either. Where the selection or rejection is arbitrary, certainly this Court would interfere
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M/s. TBEA Shenyang Transformers Group Co. Ltd Vs. M/s. Alstom Projects India Ltd | Anil R. Dave, J. 1. This is a petition under the provisions of Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as “the Act”). 2. By virtue of this petition, the petitioner company, incorporated in Republic of China, has prayed that an Arbitrator be appointed so as to arbitrate the dispute which the petitioner company is having with the respondent company, incorporated under the provisions of the Companies Act, 1956, in India. 3. According to the learned counsel appearing for the petitioner company, the petitioner company had entered into a contract on 24.12.2007 with the respondent company for supply of Transformers and certain other electrical equipments which were necessary for the purpose of setting up Transformers. The said Transformers were to be supplied for Chuzachen Project at Sikkim. 4. According to the respondent company, there were some defects in the material supplied by the petitioner company and when the said defects were brought to the notice of the petitioner company, the petitioner company had agreed to replace the defective parts. It is pertinent to note that a bank guarantee had also been furnished by the petitioner company to the respondent company which was to be invoked in certain circumstances. According to the learned counsel appearing for the petitioner company, though there was no reason for invocation of the bank guarantee, without giving any intimation to the petitioner company, the respondent company invoked the bank guarantee on 22.06.2013. 5. In the aforestated circumstances, the petitioner company was constrained to file an application under Section 9 of the Act in the District Court at Vadodra, State of Gujarat, but the said application had been dismissed on 02.09.2013. 6. Being aggrieved by the order, whereby an application under Section 9 of the Act had been rejected, the petitioner company had approached the High Court of Gujarat at Ahmedabad. The said appeal filed before the High Court had also been dismissed on 27.09.2013 and being aggrieved by the order passed by the High Court dismissing the appeal, the petitioner had filed Special Leave Petition before this Court which had also been dismissed on 07.10.2013 as this Court did not find any infirmity in the order of the High Court. 7. In view of the aforestated background, mainly on account of invocation of the bank guarantee, the petitioner company, according to the learned counsel appearing for the petitioner, has approached this Court for appointment of an Arbitrator as per the provisions of Section 11(6) of the Act.8. The learned counsel appearing for the petitioner-company mainly submitted that by invoking the bank guarantee without any justifiable reason and without giving any prior intimation to the petitioner company, the respondent company committed breach of the terms of the contract. The learned counsel also drew my attention to the contents of the contract entered into between the parties on 24.12.2007 and submitted that in the aforesaid circumstances an Arbitrator be appointed by this Court so that the dispute which has arisen between the parties can be resolved by way of arbitration under the provisions of the Act. 9. On the other hand, the learned counsel appearing for the respondent-company submitted that, in fact, there is no dispute between the parties and there is no reason for appointment of an Arbitrator. He submitted that the application filed under Section 9 of the Act by the petitioner company had been rejected and the said order of rejection had been confirmed not only by the High Court, but also by this Court. The fact that no interim protection was granted denotes that there was no dispute which would require appointment of an arbitrator. He further submitted that by invoking the bank guarantee and by encashing the amount payable to the respondent company, the issue with regard to invocation of the bank guarantee has become infructuous and there cannot be any dispute on the said subject. Thus, the learned counsel appearing for the respondent submitted that this is not a case where an Arbitrator should be appointed as per the provisions of the Act. 10. Upon hearing the learned counsel for the parties and going through the provisions of the contract, I am of the view, that there is a dispute between the parties which requires to be resolved by an Arbitrator under the provisions of the Act.11. There is no dispute to the effect that there is a clause with regard to arbitration in the contract which had been entered into between the parties on 24.12.2007. The arbitration clause incorporated in the contract reads as under: “33.0 Arbitration.33.1 Where any dispute is not resolved as provided for in the preceding clause 32.1 then such dispute shall be referred to and settled by arbitration under and in accordance with the provisions of the rules applicable in land of Law. The Award shall be final and binding upon the Supplier and Purchaser. The place of arbitration shall be Paris.33.2 During settlement of disputes and arbitration proceedings, unless otherwise agreed in writing both Supplier and Purchaser shall be obliged to carry out their respective obligations under the Contract.” 12. As there was a dispute with regard to quality of material supplied, some letters were exchanged between the parties and the representatives of both the parties had also met for the purpose of resolving their disputes but unfortunately, the disputes with regard to quality of the material supplied could not be resolved and ultimately the respondent company had to invoke the bank guarantee.13. In the aforestated circumstances, it cannot be said that there is no dispute between the parties and therefore, in my opinion, an Arbitrator is required to be appointed as per the provisions of Section 11(6) of the Act. | 1[ds]10. Upon hearing the learned counsel for the parties and going through the provisions of the contract, I am of the view, that there is a dispute between the parties which requires to be resolved by an Arbitrator under the provisions of the Act.11. There is no dispute to the effect that there is a clause with regard to arbitration in the contract which had been entered into between the parties on 24.12.2007.As there was a dispute with regard to quality of material supplied, some letters were exchanged between the parties and the representatives of both the parties had also met for the purpose of resolving their disputes but unfortunately, the disputes with regard to quality of the material supplied could not be resolved and ultimately the respondent company had to invoke the bank guarantee.13. In the aforestated circumstances, it cannot be said that there is no dispute between the parties and therefore, in my opinion, an Arbitrator is required to be appointed as per the provisions of Section 11(6) of the Act. | 1 | 1,042 | 192 | ### 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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Anil R. Dave, J. 1. This is a petition under the provisions of Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as “the Act”). 2. By virtue of this petition, the petitioner company, incorporated in Republic of China, has prayed that an Arbitrator be appointed so as to arbitrate the dispute which the petitioner company is having with the respondent company, incorporated under the provisions of the Companies Act, 1956, in India. 3. According to the learned counsel appearing for the petitioner company, the petitioner company had entered into a contract on 24.12.2007 with the respondent company for supply of Transformers and certain other electrical equipments which were necessary for the purpose of setting up Transformers. The said Transformers were to be supplied for Chuzachen Project at Sikkim. 4. According to the respondent company, there were some defects in the material supplied by the petitioner company and when the said defects were brought to the notice of the petitioner company, the petitioner company had agreed to replace the defective parts. It is pertinent to note that a bank guarantee had also been furnished by the petitioner company to the respondent company which was to be invoked in certain circumstances. According to the learned counsel appearing for the petitioner company, though there was no reason for invocation of the bank guarantee, without giving any intimation to the petitioner company, the respondent company invoked the bank guarantee on 22.06.2013. 5. In the aforestated circumstances, the petitioner company was constrained to file an application under Section 9 of the Act in the District Court at Vadodra, State of Gujarat, but the said application had been dismissed on 02.09.2013. 6. Being aggrieved by the order, whereby an application under Section 9 of the Act had been rejected, the petitioner company had approached the High Court of Gujarat at Ahmedabad. The said appeal filed before the High Court had also been dismissed on 27.09.2013 and being aggrieved by the order passed by the High Court dismissing the appeal, the petitioner had filed Special Leave Petition before this Court which had also been dismissed on 07.10.2013 as this Court did not find any infirmity in the order of the High Court. 7. In view of the aforestated background, mainly on account of invocation of the bank guarantee, the petitioner company, according to the learned counsel appearing for the petitioner, has approached this Court for appointment of an Arbitrator as per the provisions of Section 11(6) of the Act.8. The learned counsel appearing for the petitioner-company mainly submitted that by invoking the bank guarantee without any justifiable reason and without giving any prior intimation to the petitioner company, the respondent company committed breach of the terms of the contract. The learned counsel also drew my attention to the contents of the contract entered into between the parties on 24.12.2007 and submitted that in the aforesaid circumstances an Arbitrator be appointed by this Court so that the dispute which has arisen between the parties can be resolved by way of arbitration under the provisions of the Act. 9. On the other hand, the learned counsel appearing for the respondent-company submitted that, in fact, there is no dispute between the parties and there is no reason for appointment of an Arbitrator. He submitted that the application filed under Section 9 of the Act by the petitioner company had been rejected and the said order of rejection had been confirmed not only by the High Court, but also by this Court. The fact that no interim protection was granted denotes that there was no dispute which would require appointment of an arbitrator. He further submitted that by invoking the bank guarantee and by encashing the amount payable to the respondent company, the issue with regard to invocation of the bank guarantee has become infructuous and there cannot be any dispute on the said subject. Thus, the learned counsel appearing for the respondent submitted that this is not a case where an Arbitrator should be appointed as per the provisions of the Act. 10. Upon hearing the learned counsel for the parties and going through the provisions of the contract, I am of the view, that there is a dispute between the parties which requires to be resolved by an Arbitrator under the provisions of the Act.11. There is no dispute to the effect that there is a clause with regard to arbitration in the contract which had been entered into between the parties on 24.12.2007. The arbitration clause incorporated in the contract reads as under: “33.0 Arbitration.33.1 Where any dispute is not resolved as provided for in the preceding clause 32.1 then such dispute shall be referred to and settled by arbitration under and in accordance with the provisions of the rules applicable in land of Law. The Award shall be final and binding upon the Supplier and Purchaser. The place of arbitration shall be Paris.33.2 During settlement of disputes and arbitration proceedings, unless otherwise agreed in writing both Supplier and Purchaser shall be obliged to carry out their respective obligations under the Contract.” 12. As there was a dispute with regard to quality of material supplied, some letters were exchanged between the parties and the representatives of both the parties had also met for the purpose of resolving their disputes but unfortunately, the disputes with regard to quality of the material supplied could not be resolved and ultimately the respondent company had to invoke the bank guarantee.13. In the aforestated circumstances, it cannot be said that there is no dispute between the parties and therefore, in my opinion, an Arbitrator is required to be appointed as per the provisions of Section 11(6) of the Act.
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10. Upon hearing the learned counsel for the parties and going through the provisions of the contract, I am of the view, that there is a dispute between the parties which requires to be resolved by an Arbitrator under the provisions of the Act.11. There is no dispute to the effect that there is a clause with regard to arbitration in the contract which had been entered into between the parties on 24.12.2007.As there was a dispute with regard to quality of material supplied, some letters were exchanged between the parties and the representatives of both the parties had also met for the purpose of resolving their disputes but unfortunately, the disputes with regard to quality of the material supplied could not be resolved and ultimately the respondent company had to invoke the bank guarantee.13. In the aforestated circumstances, it cannot be said that there is no dispute between the parties and therefore, in my opinion, an Arbitrator is required to be appointed as per the provisions of Section 11(6) of the Act.
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New Era Agencies (Pvt.) Ltd., Bombay Vs. Commissioner Of Income-Tax, Bombay City 1,Bombay | the four items, viz, relinquishment of Managing Agency. He paid the amount to the Managing Agents Chidambaram Mulraj and Co. Ltd. Deducting the amount of Rs. l0 lakhs from the total consideration of Rs. 45 lakhs, the balance of Rs. 35 lakhs was distributed by Mulraj Kersondas among the 25,000 ordinary shares and 10,000 preference shares. It was pointed out for the appellant that at the material time when the transactions had gone through the market price for Elphinstone Mills shares was Rs. 37 per ordinary share and Rs. 88 per preference share, but when Mulraj Kersondas distributed Rs.35 lakhs among the ordinary and preference shares each ordinary share was paid at the rate of Rs. 80 and each preference share was paid at the rate of Rs. l50. According to the appellant therefore the excess amount paid by the purchaser over and above the market price was paid by him for the controlling interest which was being transferred along with the shares. In other words, the contention of the appellant was that the profit on the sale of the shares made by the appellant must be calculated on the basis of what it got for the sale-price of the shares only and not on the basis of the entire consideration received by it which was a composite payment received for the price of the shares and for parting with the controlling interest. We are unable to accept this argument as correct. It may be that in the total disposal of the entire block of shares in favour of K D Jalan the latter may have acquired certain amount of controlling power apart from mere acquisition of shares. It is also conceivable that Mulraj Kersondas in going through the transaction with K. D. Jalan, might have given to K. D. Jalan not only the shares but also certain other advantages. But the question must be examined from the view-point of the appellant and what we have to see is what the appellant parted with and what the appellant got in return. It should be noticed that the appellant itself had no controlling interest in the Elphinstone Mills. It was not the Managing Agent of the Elphinstone Mills and its holding in the shares of the Elphinstone Mills was only to the extent of 13 per cent which could not give it any controlling power. Mr. Sanat P. Mehta said that though the appellant had not a sufficiently large holding to give it any controlling power, it was a member of the Mulraj Kersondas group and it was working in close concert with Mulraj Kersondas who had considerable controlling power and interest. It was argued that the transaction entered into by Mulraj Kersondas with K. D. Jalan, although entered into by Mulraj Kersondas alone, should be treated as the transaction on behalf of the entire group of Mulraj Kersondas including the appellant. What was therefore being offered by Mulraj Kersondas to K. D. Jalan was an offer on behalf of the entire group which had a built-in power which it was proposing to transfer to K. D. Jalan in the scheme proposed by Mulraj Kersondas who was the representative of the group. It was therefore argued on behalf of the appellant that it would not be correct to say that the appellant had not parted with anything more than the block of its shares in the present transaction. It is not possible to accept this argument put forward on behalf of the appellant. There is nothing on the record of the case to support the theory that the transaction with K. D. Jalan was not a transaction by Mulraj Kersondas himself but a transaction of the entire group. As appears from the letter of Mulraj Kersondas dated September 25, 1953, the offer was on behalf of Mulraj Kersondas alone. His letter to the Managing Agents was a direction given by him asking them to do certain things to suit his convenience and as it appears from the record, the direction was promptly observed by them. As pointed out by the High Court, the circumstances of the case indicate that Mulraj Kersondas was, by reason of his influence and power in a position to command obedience of his wishes from his nominees and associates concerned When Mulraj Kersondas decided to enter into a transaction for the sale of the shares to K D. Jalan he called upon the appellant to keep at his disposal the holding which the appellant had in its shares of the Elphinstone Mills. No controlling power was held by the appellant itself in the Elphinstone Mills and it was not in a position to procure the resignation of the Directors or to bring about the appointment of the persons of the choice of K. D. Jalan as Directors. Nor was it in a position to call upon the Managing Agents to relinquish their office All these were, however, possible to Mulraj Kersondas because of the influence and power which he possessed.The part taken by the appellant in the transaction with K. D Jalan was merely a passive part, viz., keeping at the disposal of Mulraj Kersondas its holding in Elphinstone Mills shares which it had held in its business as a dealer in shares. So far as the appellant is concerned, what it parted with was the shares which it held and what it received was the payment for those shares. It follows therefore that the entire sum received by the appellant from Mulraj Kersondas was the price of the shares disposed of by Mulraj Kersondas and consequently the whole of the excess over the cost price of the shares was the profit of the appellant.7. We accordingly hold that no part of the amount of Rs. 10,42,990 received by the appellant from Mulraj Kersondas can be regarded as consideration for any other valuable right excepting the price of the shares sold by it. The second question was therefore rightly answered by the High Court against the appellant.8. | 0[ds]In our opinion there is no justification for the argument put forward on behalf of the appellant. It is admitted that the appellant is a dealer in shares and that it had actually dealt with the shares of Elphinstone Mills during Its business from the years 1943 to 1948. The appellant had carried forward the profits and losses in the entire share business carried on by it to its revenue account including the business in the Elphinstone Mills share. During the years from 1943 to 1948 the appellant purchased shares of the Elphinstone Mills and also sold them. It is true that at the end of the year 1948 the appellant was possessed of as many as 5137 ordinary shares and 1131 preference shares of the Elphinstone Mills but It is also apparent that in 1944 the appellant had sold 2,000 shares and in 1947 and 1948 the appellant had sold 1,000 shares in each year. During all these years the profits and losses in these shares have been treated on the same footing as the profits and losses in other shares by the appellant. An alternative argument was presented by Mr. Sanat P. Mehta that at least from the year 1948 the holding in the shares of the Elphinstone Mills was regarded by the appellant not as a stock-in-trade but as anwas contended that the circumstance that the appellant had been a dealer in shares for some years did not preclude it from being an investor in shares in subsequent years. It is no doubt true that a person who has been a dealer in shares in some years can be an investor in shares in subsequent years. It is also true that it is possible for a dealer in shares to convert a part of its stock-in-trade into investment. But as has been observed by the Appellate Tribunal, there is nothing in the books of the appellant or in its resolutions to show that it had changed its attitude towards the shares of the Elphinstone Mills from the year 1948. The only circumstance pointed out by the appellant is that from the year 1949 onwards the appellant had not sold the shares of the Elphinstone bulls but on the other hand had added to its holding. But this circumstance in itself is not sufficient to reach an inference that the appellant had treated its holding in the shares asis apparent that during the Years 1949-53 the shares of the Elphinstone Mills had slumped in price and this may be the reason why the appellant did not affect any sales during this period. It was pointed out that during this period the appellant had also made further purchases of the shares. But it is not unreasonable to think that the appellant who was a dealer in shares was making further purchases and accumulating its holding when the market was falling so as to be in a position to sell the shares to its advantage when a suitable opportunity occurred. The argument was further stressed on behalf of the appellant that it had purchased the shares of the Elphinstone Mills with a view to support the Managing Agents of the Mills since the appellant itself had an interest in the Managing Agency Company, being one of its share-holders. It was therefore contended that the holding of the appellant in the shares of Elphinstone Mills must be treated as a holding on capital account and the sale thereof must also be regarded as on capital account, We do not think there is any warrant for this argument. As pointed out by the Appellate Tribunal, there is no material on the record to suggest that the main object of the appellant in acquiring the shares of the Elphinstone Mills was to give support to the Managing Agents. The conduct of the appellant in disposing of large number of hares of Elphinstone Mills during the years 1943-48 is not consistent with the theory that the appellant was acquiring shares for the purpose of supporting the Managing Agents. There is also nothing on the record to show that during the years 1949- 53 when no sales were effected it was necessary to conserve the holding in the shares of the Elphinstone Mills because the Managing Agency was in any way threatened. It also appears that at the time when the Managing Agency was acquired there was no need to make any use of the holding of the appellant in the shares of the Elphinstone Mills because the appellant at that time had hardly any shares.Subsequently to the acquisition of the Managing Agency until it was relinquished in 1953 there is nothing on the record of the proceedings to show that at any time the Managing Agency had Felt its existence either precarious or in need of support. We therefore reject the argument of the appellant on this aspect of the case and hold that the profit made by the appellant on the sale of the shares was its business income and the first question was rightly answered by the High Court against the appellant and in favour of the Income Taxare unable to accept this argument as correct. It may be that in the total disposal of the entire block of shares in favour of K D Jalan the latter may have acquired certain amount of controlling power apart from mere acquisition of shares. It is also conceivable that Mulraj Kersondas in going through the transaction with K. D. Jalan, might have given to K. D. Jalan not only the shares but also certain other advantages. But the question must be examined from the view-point of the appellant and what we have to see is what the appellant parted with and what the appellant got in return. It should be noticed that the appellant itself had no controlling interest in the Elphinstone Mills. It was not the Managing Agent of the Elphinstone Mills and its holding in the shares of the Elphinstone Mills was only to the extent of 13 per cent which could not give it any controlling power. Mr. Sanat P. Mehta said that though the appellant had not a sufficiently large holding to give it any controlling power, it was a member of the Mulraj Kersondas group and it was working in close concert with Mulraj Kersondas who had considerable controlling power andis not possible to accept this argument put forward on behalf of the appellant. There is nothing on the record of the case to support the theory that the transaction with K. D. Jalan was not a transaction by Mulraj Kersondas himself but a transaction of the entire group. As appears from the letter of Mulraj Kersondas dated September 25, 1953, the offer was on behalf of Mulraj Kersondas alone. His letter to the Managing Agents was a direction given by him asking them to do certain things to suit his convenience and as it appears from the record, the direction was promptly observed by them. As pointed out by the High Court, the circumstances of the case indicate that Mulraj Kersondas was, by reason of his influence and power in a position to command obedience of his wishes from his nominees and associates concerned When Mulraj Kersondas decided to enter into a transaction for the sale of the shares to K D. Jalan he called upon the appellant to keep at his disposal the holding which the appellant had in its shares of the Elphinstone Mills. No controlling power was held by the appellant itself in the Elphinstone Mills and it was not in a position to procure the resignation of the Directors or to bring about the appointment of the persons of the choice of K. D. Jalan as Directors. Nor was it in a position to call upon the Managing Agents to relinquish their office All these were, however, possible to Mulraj Kersondas because of the influence and power which he possessed.The part taken by the appellant in the transaction with K. D Jalan was merely a passive part, viz., keeping at the disposal of Mulraj Kersondas its holding in Elphinstone Mills shares which it had held in its business as a dealer in shares. So far as the appellant is concerned, what it parted with was the shares which it held and what it received was the payment for those shares. It follows therefore that the entire sum received by the appellant from Mulraj Kersondas was the price of the shares disposed of by Mulraj Kersondas and consequently the whole of the excess over the cost price of the shares was the profit of theaccordingly hold that no part of the amount of Rs. 10,42,990 received by the appellant from Mulraj Kersondas can be regarded as consideration for any other valuable right excepting the price of the shares sold by it. The second question was therefore rightly answered by the High Court against thedo not think there is any warrant for this argument. As pointed out by the Appellate Tribunal, there is no material on the record to suggest that the main object of the appellant in acquiring the shares of the Elphinstone Mills was to give support to the Managing Agents. The conduct of the appellant in disposing of large number of hares of Elphinstone Mills during the yearsis not consistent with the theory that the appellant was acquiring shares for the purpose of supporting the Managing Agents. There is also nothing on the record to show that during the years 194953 when no sales were effected it was necessary to conserve the holding in the shares of the Elphinstone Mills because the Managing Agency was in any way threatened. It also appears that at the time when the Managing Agency was acquired there was no need to make any use of the holding of the appellant in the shares of the Elphinstone Mills because the appellant at that time had hardly any shares.Subsequently to the acquisition of the Managing Agency until it was relinquished in 1953 there is nothing on the record of the proceedings to show that at any time the Managing Agency had Felt its existence either precarious or in need of support. We therefore reject the argument of the appellant on this aspect of the case and hold that the profit made by the appellant on the sale of the shares was its business income and the first question was rightly answered by the High Court against the appellant and in favour of the Income Tax | 0 | 3,863 | 1,818 | ### 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 four items, viz, relinquishment of Managing Agency. He paid the amount to the Managing Agents Chidambaram Mulraj and Co. Ltd. Deducting the amount of Rs. l0 lakhs from the total consideration of Rs. 45 lakhs, the balance of Rs. 35 lakhs was distributed by Mulraj Kersondas among the 25,000 ordinary shares and 10,000 preference shares. It was pointed out for the appellant that at the material time when the transactions had gone through the market price for Elphinstone Mills shares was Rs. 37 per ordinary share and Rs. 88 per preference share, but when Mulraj Kersondas distributed Rs.35 lakhs among the ordinary and preference shares each ordinary share was paid at the rate of Rs. 80 and each preference share was paid at the rate of Rs. l50. According to the appellant therefore the excess amount paid by the purchaser over and above the market price was paid by him for the controlling interest which was being transferred along with the shares. In other words, the contention of the appellant was that the profit on the sale of the shares made by the appellant must be calculated on the basis of what it got for the sale-price of the shares only and not on the basis of the entire consideration received by it which was a composite payment received for the price of the shares and for parting with the controlling interest. We are unable to accept this argument as correct. It may be that in the total disposal of the entire block of shares in favour of K D Jalan the latter may have acquired certain amount of controlling power apart from mere acquisition of shares. It is also conceivable that Mulraj Kersondas in going through the transaction with K. D. Jalan, might have given to K. D. Jalan not only the shares but also certain other advantages. But the question must be examined from the view-point of the appellant and what we have to see is what the appellant parted with and what the appellant got in return. It should be noticed that the appellant itself had no controlling interest in the Elphinstone Mills. It was not the Managing Agent of the Elphinstone Mills and its holding in the shares of the Elphinstone Mills was only to the extent of 13 per cent which could not give it any controlling power. Mr. Sanat P. Mehta said that though the appellant had not a sufficiently large holding to give it any controlling power, it was a member of the Mulraj Kersondas group and it was working in close concert with Mulraj Kersondas who had considerable controlling power and interest. It was argued that the transaction entered into by Mulraj Kersondas with K. D. Jalan, although entered into by Mulraj Kersondas alone, should be treated as the transaction on behalf of the entire group of Mulraj Kersondas including the appellant. What was therefore being offered by Mulraj Kersondas to K. D. Jalan was an offer on behalf of the entire group which had a built-in power which it was proposing to transfer to K. D. Jalan in the scheme proposed by Mulraj Kersondas who was the representative of the group. It was therefore argued on behalf of the appellant that it would not be correct to say that the appellant had not parted with anything more than the block of its shares in the present transaction. It is not possible to accept this argument put forward on behalf of the appellant. There is nothing on the record of the case to support the theory that the transaction with K. D. Jalan was not a transaction by Mulraj Kersondas himself but a transaction of the entire group. As appears from the letter of Mulraj Kersondas dated September 25, 1953, the offer was on behalf of Mulraj Kersondas alone. His letter to the Managing Agents was a direction given by him asking them to do certain things to suit his convenience and as it appears from the record, the direction was promptly observed by them. As pointed out by the High Court, the circumstances of the case indicate that Mulraj Kersondas was, by reason of his influence and power in a position to command obedience of his wishes from his nominees and associates concerned When Mulraj Kersondas decided to enter into a transaction for the sale of the shares to K D. Jalan he called upon the appellant to keep at his disposal the holding which the appellant had in its shares of the Elphinstone Mills. No controlling power was held by the appellant itself in the Elphinstone Mills and it was not in a position to procure the resignation of the Directors or to bring about the appointment of the persons of the choice of K. D. Jalan as Directors. Nor was it in a position to call upon the Managing Agents to relinquish their office All these were, however, possible to Mulraj Kersondas because of the influence and power which he possessed.The part taken by the appellant in the transaction with K. D Jalan was merely a passive part, viz., keeping at the disposal of Mulraj Kersondas its holding in Elphinstone Mills shares which it had held in its business as a dealer in shares. So far as the appellant is concerned, what it parted with was the shares which it held and what it received was the payment for those shares. It follows therefore that the entire sum received by the appellant from Mulraj Kersondas was the price of the shares disposed of by Mulraj Kersondas and consequently the whole of the excess over the cost price of the shares was the profit of the appellant.7. We accordingly hold that no part of the amount of Rs. 10,42,990 received by the appellant from Mulraj Kersondas can be regarded as consideration for any other valuable right excepting the price of the shares sold by it. The second question was therefore rightly answered by the High Court against the appellant.8.
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time had hardly any shares.Subsequently to the acquisition of the Managing Agency until it was relinquished in 1953 there is nothing on the record of the proceedings to show that at any time the Managing Agency had Felt its existence either precarious or in need of support. We therefore reject the argument of the appellant on this aspect of the case and hold that the profit made by the appellant on the sale of the shares was its business income and the first question was rightly answered by the High Court against the appellant and in favour of the Income Taxare unable to accept this argument as correct. It may be that in the total disposal of the entire block of shares in favour of K D Jalan the latter may have acquired certain amount of controlling power apart from mere acquisition of shares. It is also conceivable that Mulraj Kersondas in going through the transaction with K. D. Jalan, might have given to K. D. Jalan not only the shares but also certain other advantages. But the question must be examined from the view-point of the appellant and what we have to see is what the appellant parted with and what the appellant got in return. It should be noticed that the appellant itself had no controlling interest in the Elphinstone Mills. It was not the Managing Agent of the Elphinstone Mills and its holding in the shares of the Elphinstone Mills was only to the extent of 13 per cent which could not give it any controlling power. Mr. Sanat P. Mehta said that though the appellant had not a sufficiently large holding to give it any controlling power, it was a member of the Mulraj Kersondas group and it was working in close concert with Mulraj Kersondas who had considerable controlling power andis not possible to accept this argument put forward on behalf of the appellant. There is nothing on the record of the case to support the theory that the transaction with K. D. Jalan was not a transaction by Mulraj Kersondas himself but a transaction of the entire group. As appears from the letter of Mulraj Kersondas dated September 25, 1953, the offer was on behalf of Mulraj Kersondas alone. His letter to the Managing Agents was a direction given by him asking them to do certain things to suit his convenience and as it appears from the record, the direction was promptly observed by them. As pointed out by the High Court, the circumstances of the case indicate that Mulraj Kersondas was, by reason of his influence and power in a position to command obedience of his wishes from his nominees and associates concerned When Mulraj Kersondas decided to enter into a transaction for the sale of the shares to K D. Jalan he called upon the appellant to keep at his disposal the holding which the appellant had in its shares of the Elphinstone Mills. No controlling power was held by the appellant itself in the Elphinstone Mills and it was not in a position to procure the resignation of the Directors or to bring about the appointment of the persons of the choice of K. D. Jalan as Directors. Nor was it in a position to call upon the Managing Agents to relinquish their office All these were, however, possible to Mulraj Kersondas because of the influence and power which he possessed.The part taken by the appellant in the transaction with K. D Jalan was merely a passive part, viz., keeping at the disposal of Mulraj Kersondas its holding in Elphinstone Mills shares which it had held in its business as a dealer in shares. So far as the appellant is concerned, what it parted with was the shares which it held and what it received was the payment for those shares. It follows therefore that the entire sum received by the appellant from Mulraj Kersondas was the price of the shares disposed of by Mulraj Kersondas and consequently the whole of the excess over the cost price of the shares was the profit of theaccordingly hold that no part of the amount of Rs. 10,42,990 received by the appellant from Mulraj Kersondas can be regarded as consideration for any other valuable right excepting the price of the shares sold by it. The second question was therefore rightly answered by the High Court against thedo not think there is any warrant for this argument. As pointed out by the Appellate Tribunal, there is no material on the record to suggest that the main object of the appellant in acquiring the shares of the Elphinstone Mills was to give support to the Managing Agents. The conduct of the appellant in disposing of large number of hares of Elphinstone Mills during the yearsis not consistent with the theory that the appellant was acquiring shares for the purpose of supporting the Managing Agents. There is also nothing on the record to show that during the years 194953 when no sales were effected it was necessary to conserve the holding in the shares of the Elphinstone Mills because the Managing Agency was in any way threatened. It also appears that at the time when the Managing Agency was acquired there was no need to make any use of the holding of the appellant in the shares of the Elphinstone Mills because the appellant at that time had hardly any shares.Subsequently to the acquisition of the Managing Agency until it was relinquished in 1953 there is nothing on the record of the proceedings to show that at any time the Managing Agency had Felt its existence either precarious or in need of support. We therefore reject the argument of the appellant on this aspect of the case and hold that the profit made by the appellant on the sale of the shares was its business income and the first question was rightly answered by the High Court against the appellant and in favour of the Income Tax
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Kalyan Municipal Council Vs. Usha Paper Products Pvt. Ltd. | said Act are in pari materia. As far as the question raised before us is concerned, the provisions of section 82, sub-section (3), of the Bombay Municipal Boroughs Act are in pari materia with the provisions of section 123(3) of the said Act. The Full Bench of the Bombay High Court in that case came to the conclusion that the alteration made, under section 82(3) of the Bombay Municipal Boroughs Act, in the assessment list prepared under section 78 of that Act does not become effective for any period prior to the commencement of the official year in which the alteration in the assessment list is made and, therefore, the municipality is not entitled to levy tax for an official year or any part thereof which has already expired. It was also held that the expression " current official year " in section 82(3) of that Act means the earliest day in the official year which is current when the amendment of the assessment list takes place, that is to say, the expression refers to that official year which is running at the time when the amendment is made by insertion or alteration of an entry under section 82(1) of the Act. 2. The submission of Mr. Parekh, learned counsel for the appellant, is that the aforesaid case before the Full Bench was wrongly decided and, as the judgment under appeal follows the said decision of the Full Bench, that judgment is also erroneous and liable to be set aside. In our view, this contention must be negatived in view of the decision of this court rendered by a Bench of three learned judges in Municipal Corporation of City of Hubli v. Subha Rao Hanumantharao Prayag [1976] 3 SCR 883. A perusal of the said decision makes it clear that this court took the view that the scheme of the relevant provisions of the Bombay Municipal Boroughs Act, 1925, shows that the official year is the unit of time for the levy of property tax under that Act. It was further held that the expression " current official year " in the context in which it occurs in section 82, sub-section (3), clearly signifies the earliest day in the official year which is current when the amendment in the assessment list takes place and that expression refers only to the official year which is running at the time when the amendment is made by insertion or alteration of an entry under sub-section (1) of section 82. Thereafter this court goes on to point out as follows at p. 1403 of AIR 1976 SC" It would, therefore, seem clear, on a combined reading of sub-sections (1) and (3) of section 82, that an amendment, in order to be effective in levying tax for an official year, must be made during the currency of the official year. That is now well-settled as a result of several decisions of the Bombay High Court culminating in the Full Bench decision in Sholapur Municipal Corporation v. Ramchandra Ramappa Madgundi [1972] 74 Bom LR 469 and we do not see any reason to take a different view. " 3. The aforesaid statement, in the judgment of this court, clearly shows that the decision of the Full Bench of the Bombay High Court in Sholapur Municipal Corporation v. Ramchandra Ramappa Madgundi [1972] 74 Bom LR 469, was approved by this court. The decision of the aforesaid Bench of this court is binding on us and is clearly applicable to the case before us. In that judgment, this court pointed out that once it was accepted that the process of levying the tax is complete only when the assessment list is authenticated and it is only then that the tax is levied on the rate-payers, it is difficult to resist the conclusion that the authentication must be made within the official year. The tax, being a tax for the official year, must obviously be levied during the official year and since the levy of the tax is complete only when the assessment list is authenticated, it must follow that the authentication must take place in the official year. 4. Mr. Parekh urged, although not with much conviction, that the decision of this court in the case of Municipal Corporation of City of Hubli v. Subha Rao Hanumantharao Prayag [1976] 3 SCR 883 can be distinguished because in that case there was no question of any additional construction or new construction being detected. In our view, it is not possible to make any such distinction. The question which arose before the court was whether an assessment list which was finalised and authenticated on July 24, 1952, after the expiry of the official year 1951-52 on March 31, 1952, could be regarded as a good or valid assessment list for the official year 1951-52. The entire scheme of the provisions pertaining to the preparation of the assessment list and the levy of property tax under the Bombay Municipal Boroughs Act, which is materially similar to the scheme under the said Act, was considered and the aforesaid conclusions were arrived at. There is no substance in the contention that the said decision can be distinguished. Moreover, with respect, we see no reason to take a view different from the one taken in the aforesaid case. The official year is the unit of taxation as far as municipal property taxes are concerned and, if the contention of Mr. Parekh is accepted, the result would be that an assessment list could be altered at any time if the conditions set out in section 123 of the said Act are satisfied, with the result that there would be complete uncertainty in the field of taxation of property and unwary purchasers of immovable property might be put to the difficulty of having to discharge the liabilities for property taxes for years long prior to the time when they purchased the immovable property in order to save the property from being sold in recovery proceedings. 5. | 0[ds]The aforesaid statement, in the judgment of this court, clearly shows that the decision of the Full Bench of the Bombay High Court in Sholapur Municipal Corporation v. Ramchandra Ramappa Madgundi [1972] 74 Bom LR 469, was approved by this court. The decision of the aforesaid Bench of this court is binding on us and is clearly applicable to the case before us. In that judgment, this court pointed out that once it was accepted that the process of levying the tax is complete only when the assessment list is authenticated and it is only then that the tax is levied on the rate-payers, it is difficult to resist the conclusion that the authentication must be made within the official year. The tax, being a tax for the official year, must obviously be levied during the official year and since the levy of the tax is complete only when the assessment list is authenticated, it must follow that the authentication must take place in the official yearThe aforesaid statement, in the judgment of this court, clearly shows that the decision of the Full Bench of the Bombay High Court in Sholapur Municipal Corporation v. Ramchandra Ramappa Madgundi [1972] 74 Bom LR 469, was approved by this court. The decision of the aforesaid Bench of this court is binding on us and is clearly applicable to the case before us. In that judgment, this court pointed out that once it was accepted that the process of levying the tax is complete only when the assessment list is authenticated and it is only then that the tax is levied on the rate-payers, it is difficult to resist the conclusion that the authentication must be made within the official year. The tax, being a tax for the official year, must obviously be levied during the official year and since the levy of the tax is complete only when the assessment list is authenticated, it must follow that the authentication must take place in the official yearThe entire scheme of the provisions pertaining to the preparation of the assessment list and the levy of property tax under the Bombay Municipal Boroughs Act, which is materially similar to the scheme under the said Act, was considered and the aforesaid conclusions were arrived at. There is no substance in the contention that the said decision can be distinguished. Moreover, with respect, we see no reason to take a view different from the one taken in the aforesaid case. The official year is the unit of taxation as far as municipal property taxes are concerned and, if the contention of Mr. Parekh is accepted, the result would be that an assessment list could be altered at any time if the conditions set out in section 123 of the said Act are satisfied, with the result that there would be complete uncertainty in the field of taxation of property and unwary purchasers of immovable property might be put to the difficulty of having to discharge the liabilities for property taxes for years long prior to the time when they purchased the immovable property in order to save the property from being sold in recovery proceedings. | 0 | 1,845 | 568 | ### 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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said Act are in pari materia. As far as the question raised before us is concerned, the provisions of section 82, sub-section (3), of the Bombay Municipal Boroughs Act are in pari materia with the provisions of section 123(3) of the said Act. The Full Bench of the Bombay High Court in that case came to the conclusion that the alteration made, under section 82(3) of the Bombay Municipal Boroughs Act, in the assessment list prepared under section 78 of that Act does not become effective for any period prior to the commencement of the official year in which the alteration in the assessment list is made and, therefore, the municipality is not entitled to levy tax for an official year or any part thereof which has already expired. It was also held that the expression " current official year " in section 82(3) of that Act means the earliest day in the official year which is current when the amendment of the assessment list takes place, that is to say, the expression refers to that official year which is running at the time when the amendment is made by insertion or alteration of an entry under section 82(1) of the Act. 2. The submission of Mr. Parekh, learned counsel for the appellant, is that the aforesaid case before the Full Bench was wrongly decided and, as the judgment under appeal follows the said decision of the Full Bench, that judgment is also erroneous and liable to be set aside. In our view, this contention must be negatived in view of the decision of this court rendered by a Bench of three learned judges in Municipal Corporation of City of Hubli v. Subha Rao Hanumantharao Prayag [1976] 3 SCR 883. A perusal of the said decision makes it clear that this court took the view that the scheme of the relevant provisions of the Bombay Municipal Boroughs Act, 1925, shows that the official year is the unit of time for the levy of property tax under that Act. It was further held that the expression " current official year " in the context in which it occurs in section 82, sub-section (3), clearly signifies the earliest day in the official year which is current when the amendment in the assessment list takes place and that expression refers only to the official year which is running at the time when the amendment is made by insertion or alteration of an entry under sub-section (1) of section 82. Thereafter this court goes on to point out as follows at p. 1403 of AIR 1976 SC" It would, therefore, seem clear, on a combined reading of sub-sections (1) and (3) of section 82, that an amendment, in order to be effective in levying tax for an official year, must be made during the currency of the official year. That is now well-settled as a result of several decisions of the Bombay High Court culminating in the Full Bench decision in Sholapur Municipal Corporation v. Ramchandra Ramappa Madgundi [1972] 74 Bom LR 469 and we do not see any reason to take a different view. " 3. The aforesaid statement, in the judgment of this court, clearly shows that the decision of the Full Bench of the Bombay High Court in Sholapur Municipal Corporation v. Ramchandra Ramappa Madgundi [1972] 74 Bom LR 469, was approved by this court. The decision of the aforesaid Bench of this court is binding on us and is clearly applicable to the case before us. In that judgment, this court pointed out that once it was accepted that the process of levying the tax is complete only when the assessment list is authenticated and it is only then that the tax is levied on the rate-payers, it is difficult to resist the conclusion that the authentication must be made within the official year. The tax, being a tax for the official year, must obviously be levied during the official year and since the levy of the tax is complete only when the assessment list is authenticated, it must follow that the authentication must take place in the official year. 4. Mr. Parekh urged, although not with much conviction, that the decision of this court in the case of Municipal Corporation of City of Hubli v. Subha Rao Hanumantharao Prayag [1976] 3 SCR 883 can be distinguished because in that case there was no question of any additional construction or new construction being detected. In our view, it is not possible to make any such distinction. The question which arose before the court was whether an assessment list which was finalised and authenticated on July 24, 1952, after the expiry of the official year 1951-52 on March 31, 1952, could be regarded as a good or valid assessment list for the official year 1951-52. The entire scheme of the provisions pertaining to the preparation of the assessment list and the levy of property tax under the Bombay Municipal Boroughs Act, which is materially similar to the scheme under the said Act, was considered and the aforesaid conclusions were arrived at. There is no substance in the contention that the said decision can be distinguished. Moreover, with respect, we see no reason to take a view different from the one taken in the aforesaid case. The official year is the unit of taxation as far as municipal property taxes are concerned and, if the contention of Mr. Parekh is accepted, the result would be that an assessment list could be altered at any time if the conditions set out in section 123 of the said Act are satisfied, with the result that there would be complete uncertainty in the field of taxation of property and unwary purchasers of immovable property might be put to the difficulty of having to discharge the liabilities for property taxes for years long prior to the time when they purchased the immovable property in order to save the property from being sold in recovery proceedings. 5.
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The aforesaid statement, in the judgment of this court, clearly shows that the decision of the Full Bench of the Bombay High Court in Sholapur Municipal Corporation v. Ramchandra Ramappa Madgundi [1972] 74 Bom LR 469, was approved by this court. The decision of the aforesaid Bench of this court is binding on us and is clearly applicable to the case before us. In that judgment, this court pointed out that once it was accepted that the process of levying the tax is complete only when the assessment list is authenticated and it is only then that the tax is levied on the rate-payers, it is difficult to resist the conclusion that the authentication must be made within the official year. The tax, being a tax for the official year, must obviously be levied during the official year and since the levy of the tax is complete only when the assessment list is authenticated, it must follow that the authentication must take place in the official yearThe aforesaid statement, in the judgment of this court, clearly shows that the decision of the Full Bench of the Bombay High Court in Sholapur Municipal Corporation v. Ramchandra Ramappa Madgundi [1972] 74 Bom LR 469, was approved by this court. The decision of the aforesaid Bench of this court is binding on us and is clearly applicable to the case before us. In that judgment, this court pointed out that once it was accepted that the process of levying the tax is complete only when the assessment list is authenticated and it is only then that the tax is levied on the rate-payers, it is difficult to resist the conclusion that the authentication must be made within the official year. The tax, being a tax for the official year, must obviously be levied during the official year and since the levy of the tax is complete only when the assessment list is authenticated, it must follow that the authentication must take place in the official yearThe entire scheme of the provisions pertaining to the preparation of the assessment list and the levy of property tax under the Bombay Municipal Boroughs Act, which is materially similar to the scheme under the said Act, was considered and the aforesaid conclusions were arrived at. There is no substance in the contention that the said decision can be distinguished. Moreover, with respect, we see no reason to take a view different from the one taken in the aforesaid case. The official year is the unit of taxation as far as municipal property taxes are concerned and, if the contention of Mr. Parekh is accepted, the result would be that an assessment list could be altered at any time if the conditions set out in section 123 of the said Act are satisfied, with the result that there would be complete uncertainty in the field of taxation of property and unwary purchasers of immovable property might be put to the difficulty of having to discharge the liabilities for property taxes for years long prior to the time when they purchased the immovable property in order to save the property from being sold in recovery proceedings.
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Rhone-Poulenc (India) Limited Vs. State of Uttar Pradesh and Others | service along with consequential benefits. The plea of respondent No. 3 that the transfer order had been issued by an incompetent authority and, therefore, the non-compliance thereof cannot be treated as misconduct was accepted. It was noticed in the award that the appellant did not produce any material to prove that the Regional Sales Manager was competent to pass an order of transfer or that the powers to transfer the Medical Representatives had been delegated to the Regional Sales Manager. It was admitted that the Corporate Manager had the power to pass order of transfer of Medical Representatives.Two writ petitions filed by the appellant, one challenging the order dated 22nd September, 1993 and the other the award dated 18th December, 1995, were dismissed by the High Court by a common judgment which is under challenge in these appeals. Mr. V. R. Reddy, learned counsel for the appellant, contends that the Labour Court had no jurisdiction to deal with the matter since respondent No. 3 a Medical Representative, could not be held to be a deemed workman within the meaning of the U.P. Industrial Disputes Act by virtue of Section 6(2) of the Sales Promotion Employees (Conditions of Service) Act, 1976. The said section reads as under : "6(2). The provisions of the Industrial Disputes Act, 1947 (14 of 1947), as in force for the time being, shall apply to, or in relation to, sales promotion employees as they apply to, or in relation to, workmen within the meaning of the Act and for the purposes of any proceeding under that Act in relation to an industrial dispute, a sales promotion employee shall be deemed to include a sales promotion employee who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute or whose dismissal, discharge or retrenchment had led to that dispute." * The contention of the learned counsel is that assuming the aforesaid provision is applicable, it still does not extend to deeming fiction to any State enactment including the U.P. Industrial Disputes Act as it is apparent on reading of the section that Sales Promotion Employees, within the meaning of Central enactment of the Industrial Disputes Act, 1947 (14 of 1947) have been treated as workman. Reliance has been placed by the learned counsel on a Constitution Bench decision of this Court in H. R. Adyanthaya v. Sandoz India Ltd. The Bench has held that since the Medical representatives are not workmen within the meaning of the Maharashtra Act, the complaint made to the Industrial Court under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 was not maintainable. The acceptance of the contention of Mr. Reddy that respondent No. 3 in view of Sandoz case is not a workman within the meaning of the U.P. Industrial Disputes Act, however, does not help the appellant in substance as in the present case we propose to adopt the same course as was adopted in Sandoz case by treating the complaint to be an industrial dispute under the Industrial Disputes Act, 1947 in exercise of the powers of this Court under Article 142 of the Constitution. More than 12 years have passed since the reference was made to the Industrial Court and in the facts and circumstances of the case, we think it appropriate to adopt the course as was adopted in Sandoz case. Thus, we treat the reference in question to be one under Section 10(1)(d) of the Industrial Disputes Act, 1947.The appellant did not place any material before the Labour Court to prove the authority and competence of the Regional Sales Manager to order the transfer of respondent No. 3. The appellant has been unable to make out any case for disturbing the finding recorded by the Labour Court as affirmed by the High Court that the transfer order of respondent No. 3 had not been issued by a competent authority. The mere fact that after the order of transfer had been issued and when respondent No. 3 had failed to report for duty, he was also asked by the Corporate Manager, who was competent to order his transfer, to join the duties at Kanpur will not validate the order of transfer issued by an authority not competent to do so. The High Court has also held that respondent No. 3 is entitled to the same amount of salary/arrears of salary after he was reinstated by the award of the Labour Court which his counterparts (Medical Representatives) in the appellant company were receiving under the settlement dated 25th June, 1988 and has further held that the said settlement is applicable to the case of respondent No. 3 as well and the appellant is estopped from taking the plea of its non-applicability in case of respondent No. 3, Mr. Reddy contends that the aforesaid finding of the High Court deserves to be set aside. We agree. The question whether respondent No. 3 is entitled or not to the benefit of settlement dated 25th June, 1988 was not the subject-matter of the award which directed the reinstatement of workman in service along with consequential benefits. What consequential benefits respondent No. 3 would be entitled to was not the subject matter of the writ petitions before the High Court. According to the appellant, respondent No. 3 is not entitled to the benefits under the settlement whereas respondent No. 3 claims such benefits. This question may have to be adjudicated by a competent authority at an appropriate stage when the question of grant of consequential relief is raised or it is contended that full consequential reliefs in terms of the award have been denied to respondent No. 3. The stage of implementation of the award had not come when the matter was pending before the High Court. The only question before the High Court was with regard to the legality of the award and the order dated 22nd September, 1993 whereby the two preliminary issues were decided by the Labour Court. | 1[ds]What consequential benefits respondent No. 3 would be entitled to was not the subject matter of the writ petitions before the High Court. According to the appellant, respondent No. 3 is not entitled to the benefits under the settlement whereas respondent No. 3 claims such benefits. This question may have to be adjudicated by a competent authority at an appropriate stage when the question of grant of consequential relief is raised or it is contended that full consequential reliefs in terms of the award have been denied to respondent No. 3. The stage of implementation of the award had not come when the matter was pending before the High Court. The only question before the High Court was with regard to the legality of the award and the order dated 22nd September, 1993 whereby the two preliminary issues were decided by the Labour Court. | 1 | 1,430 | 159 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
### Input:
service along with consequential benefits. The plea of respondent No. 3 that the transfer order had been issued by an incompetent authority and, therefore, the non-compliance thereof cannot be treated as misconduct was accepted. It was noticed in the award that the appellant did not produce any material to prove that the Regional Sales Manager was competent to pass an order of transfer or that the powers to transfer the Medical Representatives had been delegated to the Regional Sales Manager. It was admitted that the Corporate Manager had the power to pass order of transfer of Medical Representatives.Two writ petitions filed by the appellant, one challenging the order dated 22nd September, 1993 and the other the award dated 18th December, 1995, were dismissed by the High Court by a common judgment which is under challenge in these appeals. Mr. V. R. Reddy, learned counsel for the appellant, contends that the Labour Court had no jurisdiction to deal with the matter since respondent No. 3 a Medical Representative, could not be held to be a deemed workman within the meaning of the U.P. Industrial Disputes Act by virtue of Section 6(2) of the Sales Promotion Employees (Conditions of Service) Act, 1976. The said section reads as under : "6(2). The provisions of the Industrial Disputes Act, 1947 (14 of 1947), as in force for the time being, shall apply to, or in relation to, sales promotion employees as they apply to, or in relation to, workmen within the meaning of the Act and for the purposes of any proceeding under that Act in relation to an industrial dispute, a sales promotion employee shall be deemed to include a sales promotion employee who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute or whose dismissal, discharge or retrenchment had led to that dispute." * The contention of the learned counsel is that assuming the aforesaid provision is applicable, it still does not extend to deeming fiction to any State enactment including the U.P. Industrial Disputes Act as it is apparent on reading of the section that Sales Promotion Employees, within the meaning of Central enactment of the Industrial Disputes Act, 1947 (14 of 1947) have been treated as workman. Reliance has been placed by the learned counsel on a Constitution Bench decision of this Court in H. R. Adyanthaya v. Sandoz India Ltd. The Bench has held that since the Medical representatives are not workmen within the meaning of the Maharashtra Act, the complaint made to the Industrial Court under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 was not maintainable. The acceptance of the contention of Mr. Reddy that respondent No. 3 in view of Sandoz case is not a workman within the meaning of the U.P. Industrial Disputes Act, however, does not help the appellant in substance as in the present case we propose to adopt the same course as was adopted in Sandoz case by treating the complaint to be an industrial dispute under the Industrial Disputes Act, 1947 in exercise of the powers of this Court under Article 142 of the Constitution. More than 12 years have passed since the reference was made to the Industrial Court and in the facts and circumstances of the case, we think it appropriate to adopt the course as was adopted in Sandoz case. Thus, we treat the reference in question to be one under Section 10(1)(d) of the Industrial Disputes Act, 1947.The appellant did not place any material before the Labour Court to prove the authority and competence of the Regional Sales Manager to order the transfer of respondent No. 3. The appellant has been unable to make out any case for disturbing the finding recorded by the Labour Court as affirmed by the High Court that the transfer order of respondent No. 3 had not been issued by a competent authority. The mere fact that after the order of transfer had been issued and when respondent No. 3 had failed to report for duty, he was also asked by the Corporate Manager, who was competent to order his transfer, to join the duties at Kanpur will not validate the order of transfer issued by an authority not competent to do so. The High Court has also held that respondent No. 3 is entitled to the same amount of salary/arrears of salary after he was reinstated by the award of the Labour Court which his counterparts (Medical Representatives) in the appellant company were receiving under the settlement dated 25th June, 1988 and has further held that the said settlement is applicable to the case of respondent No. 3 as well and the appellant is estopped from taking the plea of its non-applicability in case of respondent No. 3, Mr. Reddy contends that the aforesaid finding of the High Court deserves to be set aside. We agree. The question whether respondent No. 3 is entitled or not to the benefit of settlement dated 25th June, 1988 was not the subject-matter of the award which directed the reinstatement of workman in service along with consequential benefits. What consequential benefits respondent No. 3 would be entitled to was not the subject matter of the writ petitions before the High Court. According to the appellant, respondent No. 3 is not entitled to the benefits under the settlement whereas respondent No. 3 claims such benefits. This question may have to be adjudicated by a competent authority at an appropriate stage when the question of grant of consequential relief is raised or it is contended that full consequential reliefs in terms of the award have been denied to respondent No. 3. The stage of implementation of the award had not come when the matter was pending before the High Court. The only question before the High Court was with regard to the legality of the award and the order dated 22nd September, 1993 whereby the two preliminary issues were decided by the Labour Court.
### Response:
1
### Explanation:
What consequential benefits respondent No. 3 would be entitled to was not the subject matter of the writ petitions before the High Court. According to the appellant, respondent No. 3 is not entitled to the benefits under the settlement whereas respondent No. 3 claims such benefits. This question may have to be adjudicated by a competent authority at an appropriate stage when the question of grant of consequential relief is raised or it is contended that full consequential reliefs in terms of the award have been denied to respondent No. 3. The stage of implementation of the award had not come when the matter was pending before the High Court. The only question before the High Court was with regard to the legality of the award and the order dated 22nd September, 1993 whereby the two preliminary issues were decided by the Labour Court.
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Mir Muzafaruddin Khan and Three Others Vs. Syed Arifuddin Khan and Others | Ali Khan son of Syed Muzaffuruddin Khan and that the latter had accepted and taken possession of the property gifted on behalf of the minor. The memorandum had been executed by way of a declaration and recital of "past facts". D.W. 1 Asmuthunissa Begam supported the version about the gift having been made. Other witnesses were also produced whose evidence has been considered by the High Court. But the documentary evidence appear to negative the case of the defendants that a valid gift had been made by Syed Zainulabudin in favour of defendant No. 4. In the first place it is difficult to understand why Syed Zainulabudin did not execute a proper document and merely made on oral gift in July, 1952 when after some months he actually executed a document declaring that a gift had been made by him. But even it that declaration he did not make any mention of the date on which the oral gift was stated to have been made. Exhibits P-15 and P-21 showed that even after the so-called gift Syed Zainulabudin Khan was himself managing the property as his own. In Ext. P-15 which was a tenancy agreement, dated May 22, 1953, Syed Zainulabudin Khan stated that he was the exclusive owner of the house. Exhibit P-21 was a letter written by him to the Superintendent Central Storage. That also showed that he claimed the rent of the house in question as an owner. No mutation was got effected in the municipal records about the change of ownership. Our attention was invited to a letter, dated March 23, 1954, from the Office of the Income Tax Officer to defendant 3 in which there was some mention of a copy of a certain document filed by Syed Zainulabuddin Khan during his life-time on March 9, 1953 before the income-tax authorities. By looking at Ext. C-14 which is a letter, dated February 9, 1954 from defendant 3 to the Income Tax Officer this document was a mere "Hiba agreement". It would seem that this document, was the same as Ext. C-20, dated November 20, 1952, containing the declaration about a gift having been made. No attempt was made to get the document mentioned in Ext. C-13 produced not was any other evidence adduced to show that the copy related to some document other than Ext. C-20. In our opinion the High Court was justified in coming to the conclusion that the gift even if made orally, as alleged, was never completed in accordance with the rules of Mohammedan Law. It is essential to the validity of a gift under Mohammedan Law that there should be a delivery of such possession as the subject of the gift is susceptible of. In other words the taking of possession of the subject-matter of the gift by the donee either actually or constructively is necessary to complete a gift. The High Court rightly found that there had been no delivery of possession by the donor to the donee, in the present case, of the property stated to have been gifted by Syed Zainulabudin Khan to defendant No. 4. As stated before the donor continued receiving rents and profits of the aforesaid property during his lifetime and no mutation was effected in the municipal records in favour of the donee. It is also not disputed that the municipal taxes and other similar dues continued to be paid by the donor. Even if there was some declaration of gift it did not have the effect of a valid gift in favour of the donee as one of the essential conditions for completing the gift was not satisfied. It cannot be forgotten that the donor was a retired Tahsildar (Revenue Official). He was likely to be familiar with the formalities which were required under his personal law to make a valid gift. It is inconceivable that he did not comply with all the necessary requirements if he intended or as a matter of fact made a completed gift in favour of defendant No. 4. 6. The argument about the plaintiff not being a legitimate son of Syed Zainulabudin Khan had hardly any substance. There is a concurrent finding of both the courts that the plaintiff was born during the continuance of a valid marriage between Syed Zainulabudin Khan and Mehrunnissa Begam. The plaintiff was born on May 13, 1949, and the divorcee between Syed Zainulabudin Khan and Mehrunnissa Begam took place on May 30, 1949. Section 112 of the Evidence Act provides that the fact that any person was born during the continuance of a valid marriage between his mother and any man or within 280 days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten. According to the case of the defendants Syed Zainulabudin Khan, during his own life-time, had disowned the plaintiff as his son and had divorced Mehrunnissa Begam only 17 days after his birth on the ground that she was leading an immoral life. The Courts below accepted the evidence about the date of birth of the plaintiff. As no satisfactory evidence had been produced that Syed Zainulabudin had no access to Mehrunnissa Begam till she was divorced the provisions of Section 112 were fully applicable. Even otherwise it was found that Mehrunnissa Begam was living with Syed Zainulabudin Khan at the time when the plaintiff was begotten. Asmuthunissa Begam who had supported the defendants on various matters did not deny that the plaintiff was the legitimate son of Syed Zainulabudin. We are satisfied that the decision of the courts below on the question of legitimacy of the plaintiff was correct. Finally no serious attempt was made to persuade us to hold that the old Citreon Car had been gifted by Syed Zainulabudin Khan during his lifetime to defendant No. 3. | 0[ds]4. We do not consider it necessary to refer to the other points as well as the properties which were in dispute before the courts below5. The gift is alleged to have been made orally on July 25, 1952, by Syed Zainulabudin Khan in favour of defendant No. 4 between 4 to 5 p.m. Certain witnesses, namely, Mir Raza Ali D.W. 5 and Zahur Nawaz Jung D.W. 6 were stated to be present at that time. Mir Muzaffuruddin Khan the father of the donee who was a minor is alleged to have accepted the gift on his behalf. It is said that the possession of the property which had been gifted was delivered by the donor by opening the house which was lying vacant and delivering the key to Syed Muzaffuruddin Khan. On November 29, 1952, Syed Zainulabudin Khan executed a document Ext.. After stating that the house in Somajiguda had been acquired by him and that its value was about Rs. 50, 000 he declared that he had ceased to have any title or ownership in the said property because in view of natural love and affection he had "offered to gift away by way of Hiba without any consideration" to his grandson Mir Dawar Ali Khan son of Syed Muzaffuruddin Khan and that the latter had accepted and taken possession of the property gifted on behalf of the minor. The memorandum had been executed by way of a declaration and recital of "past facts". D.W. 1 Asmuthunissa Begam supported the version about the gift having been made. Other witnesses were also produced whose evidence has been considered by the High Court. But the documentary evidence appear to negative the case of the defendants that a valid gift had been made by Syed Zainulabudin in favour of defendant No. 4. In the first place it is difficult to understand why Syed Zainulabudin did not execute a proper document and merely made on oral gift in July, 1952 when after some months he actually executed a document declaring that a gift had been made by him. But even it that declaration he did not make any mention of the date on which the oral gift was stated to have been made. Exhibits5 and1 showed that even after thed gift Syed Zainulabudin Khan was himself managing the property as his own. In Ext.5 which was a tenancy agreement, dated May 22, 1953, Syed Zainulabudin Khan stated that he was the exclusive owner of the house. Exhibit1 was a letter written by him to the Superintendent Central Storage. That also showed that he claimed the rent of the house in question as an owner. No mutation was got effected in the municipal records about the change of ownership. Our attention was invited to a letter, dated March 23, 1954, from the Office of the Income Tax Officer to defendant 3 in which there was some mention of a copy of a certain document filed by Syed Zainulabuddin Khan during hislifetimeon March 9, 1953 before thex authorities. By looking at Ext.4 which is a letter, dated February 9, 1954 from defendant 3 to the Income Tax Officer this document was a mere "Hiba agreement". It would seem that this document, was the same as Ext., dated November 20, 1952, containing the declaration about a gift having been made. No attempt was made to get the document mentioned in Ext.3 produced not was any other evidence adduced to show that the copy related to some document other than Ext.. In our opinion the High Court was justified in coming to the conclusion that the gift even if made orally, as alleged, was never completed in accordance with the rules of Mohammedan Law. It is essential to the validity of a gift under Mohammedan Law that there should be a delivery of such possession as the subject of the gift is susceptible of. In other words the taking of possession of ther of the gift by the donee either actually or constructively is necessary to complete a gift. The High Court rightly found that there had been no delivery of possession by the donor to the donee, in the present case, of the property stated to have been gifted by Syed Zainulabudin Khan to defendant No. 4. As stated before the donor continued receiving rents and profits of the aforesaid property during hislifetimeand no mutation was effected in the municipal records in favour of the donee. It is also not disputed that the municipal taxes and other similar dues continued to be paid by the donor. Even if there was some declaration of gift it did not have the effect of a valid gift in favour of the donee as one of the essential conditions for completing the gift was not satisfied. It cannot be forgotten that the donor was a retired Tahsildar (Revenue Official). He was likely to be familiar with the formalities which were required under his personal law to make a valid gift. It is inconceivable that he did not comply with all the necessary requirements if he intended or as a matter of fact made a completed gift in favour of defendant No. 46. The argument about the plaintiff not being a legitimate son of Syed Zainulabudin Khan had hardly any substance. There is a concurrent finding of both the courts that the plaintiff was born during the continuance of a valid marriage between Syed Zainulabudin Khan and Mehrunnissa Begam. The plaintiff was born on May 13, 1949, and the divorcee between Syed Zainulabudin Khan and Mehrunnissa Begam took place on May 30, 1949. Section 112 of the Evidence Act provides that the fact that any person was born during the continuance of a valid marriage between his mother and any man or within 280 days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten. According to the case of the defendants Syed Zainulabudin Khan, during his own, had disowned the plaintiff as his son and had divorced Mehrunnissa Begam only 17 days after his birth on the ground that she was leading an immoral life. The Courts below accepted the evidence about the date of birth of the plaintiff. As no satisfactory evidence had been produced that Syed Zainulabudin had no access to Mehrunnissa Begam till she was divorced the provisions of Section 112 were fully applicable. Even otherwise it was found that Mehrunnissa Begam was living with Syed Zainulabudin Khan at the time when the plaintiff was begotten. Asmuthunissa Begam who had supported the defendants on various matters did not deny that the plaintiff was the legitimate son of Syed Zainulabudin. We are satisfied that the decision of the courts below on the question of legitimacy of the plaintiff was correct. Finally no serious attempt was made to persuade us to hold that the old Citreon Car had been gifted by Syed Zainulabudin Khan during hislifetimeto defendant No. 3. | 0 | 2,067 | 1,281 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
Ali Khan son of Syed Muzaffuruddin Khan and that the latter had accepted and taken possession of the property gifted on behalf of the minor. The memorandum had been executed by way of a declaration and recital of "past facts". D.W. 1 Asmuthunissa Begam supported the version about the gift having been made. Other witnesses were also produced whose evidence has been considered by the High Court. But the documentary evidence appear to negative the case of the defendants that a valid gift had been made by Syed Zainulabudin in favour of defendant No. 4. In the first place it is difficult to understand why Syed Zainulabudin did not execute a proper document and merely made on oral gift in July, 1952 when after some months he actually executed a document declaring that a gift had been made by him. But even it that declaration he did not make any mention of the date on which the oral gift was stated to have been made. Exhibits P-15 and P-21 showed that even after the so-called gift Syed Zainulabudin Khan was himself managing the property as his own. In Ext. P-15 which was a tenancy agreement, dated May 22, 1953, Syed Zainulabudin Khan stated that he was the exclusive owner of the house. Exhibit P-21 was a letter written by him to the Superintendent Central Storage. That also showed that he claimed the rent of the house in question as an owner. No mutation was got effected in the municipal records about the change of ownership. Our attention was invited to a letter, dated March 23, 1954, from the Office of the Income Tax Officer to defendant 3 in which there was some mention of a copy of a certain document filed by Syed Zainulabuddin Khan during his life-time on March 9, 1953 before the income-tax authorities. By looking at Ext. C-14 which is a letter, dated February 9, 1954 from defendant 3 to the Income Tax Officer this document was a mere "Hiba agreement". It would seem that this document, was the same as Ext. C-20, dated November 20, 1952, containing the declaration about a gift having been made. No attempt was made to get the document mentioned in Ext. C-13 produced not was any other evidence adduced to show that the copy related to some document other than Ext. C-20. In our opinion the High Court was justified in coming to the conclusion that the gift even if made orally, as alleged, was never completed in accordance with the rules of Mohammedan Law. It is essential to the validity of a gift under Mohammedan Law that there should be a delivery of such possession as the subject of the gift is susceptible of. In other words the taking of possession of the subject-matter of the gift by the donee either actually or constructively is necessary to complete a gift. The High Court rightly found that there had been no delivery of possession by the donor to the donee, in the present case, of the property stated to have been gifted by Syed Zainulabudin Khan to defendant No. 4. As stated before the donor continued receiving rents and profits of the aforesaid property during his lifetime and no mutation was effected in the municipal records in favour of the donee. It is also not disputed that the municipal taxes and other similar dues continued to be paid by the donor. Even if there was some declaration of gift it did not have the effect of a valid gift in favour of the donee as one of the essential conditions for completing the gift was not satisfied. It cannot be forgotten that the donor was a retired Tahsildar (Revenue Official). He was likely to be familiar with the formalities which were required under his personal law to make a valid gift. It is inconceivable that he did not comply with all the necessary requirements if he intended or as a matter of fact made a completed gift in favour of defendant No. 4. 6. The argument about the plaintiff not being a legitimate son of Syed Zainulabudin Khan had hardly any substance. There is a concurrent finding of both the courts that the plaintiff was born during the continuance of a valid marriage between Syed Zainulabudin Khan and Mehrunnissa Begam. The plaintiff was born on May 13, 1949, and the divorcee between Syed Zainulabudin Khan and Mehrunnissa Begam took place on May 30, 1949. Section 112 of the Evidence Act provides that the fact that any person was born during the continuance of a valid marriage between his mother and any man or within 280 days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten. According to the case of the defendants Syed Zainulabudin Khan, during his own life-time, had disowned the plaintiff as his son and had divorced Mehrunnissa Begam only 17 days after his birth on the ground that she was leading an immoral life. The Courts below accepted the evidence about the date of birth of the plaintiff. As no satisfactory evidence had been produced that Syed Zainulabudin had no access to Mehrunnissa Begam till she was divorced the provisions of Section 112 were fully applicable. Even otherwise it was found that Mehrunnissa Begam was living with Syed Zainulabudin Khan at the time when the plaintiff was begotten. Asmuthunissa Begam who had supported the defendants on various matters did not deny that the plaintiff was the legitimate son of Syed Zainulabudin. We are satisfied that the decision of the courts below on the question of legitimacy of the plaintiff was correct. Finally no serious attempt was made to persuade us to hold that the old Citreon Car had been gifted by Syed Zainulabudin Khan during his lifetime to defendant No. 3.
### Response:
0
### Explanation:
affection he had "offered to gift away by way of Hiba without any consideration" to his grandson Mir Dawar Ali Khan son of Syed Muzaffuruddin Khan and that the latter had accepted and taken possession of the property gifted on behalf of the minor. The memorandum had been executed by way of a declaration and recital of "past facts". D.W. 1 Asmuthunissa Begam supported the version about the gift having been made. Other witnesses were also produced whose evidence has been considered by the High Court. But the documentary evidence appear to negative the case of the defendants that a valid gift had been made by Syed Zainulabudin in favour of defendant No. 4. In the first place it is difficult to understand why Syed Zainulabudin did not execute a proper document and merely made on oral gift in July, 1952 when after some months he actually executed a document declaring that a gift had been made by him. But even it that declaration he did not make any mention of the date on which the oral gift was stated to have been made. Exhibits5 and1 showed that even after thed gift Syed Zainulabudin Khan was himself managing the property as his own. In Ext.5 which was a tenancy agreement, dated May 22, 1953, Syed Zainulabudin Khan stated that he was the exclusive owner of the house. Exhibit1 was a letter written by him to the Superintendent Central Storage. That also showed that he claimed the rent of the house in question as an owner. No mutation was got effected in the municipal records about the change of ownership. Our attention was invited to a letter, dated March 23, 1954, from the Office of the Income Tax Officer to defendant 3 in which there was some mention of a copy of a certain document filed by Syed Zainulabuddin Khan during hislifetimeon March 9, 1953 before thex authorities. By looking at Ext.4 which is a letter, dated February 9, 1954 from defendant 3 to the Income Tax Officer this document was a mere "Hiba agreement". It would seem that this document, was the same as Ext., dated November 20, 1952, containing the declaration about a gift having been made. No attempt was made to get the document mentioned in Ext.3 produced not was any other evidence adduced to show that the copy related to some document other than Ext.. In our opinion the High Court was justified in coming to the conclusion that the gift even if made orally, as alleged, was never completed in accordance with the rules of Mohammedan Law. It is essential to the validity of a gift under Mohammedan Law that there should be a delivery of such possession as the subject of the gift is susceptible of. In other words the taking of possession of ther of the gift by the donee either actually or constructively is necessary to complete a gift. The High Court rightly found that there had been no delivery of possession by the donor to the donee, in the present case, of the property stated to have been gifted by Syed Zainulabudin Khan to defendant No. 4. As stated before the donor continued receiving rents and profits of the aforesaid property during hislifetimeand no mutation was effected in the municipal records in favour of the donee. It is also not disputed that the municipal taxes and other similar dues continued to be paid by the donor. Even if there was some declaration of gift it did not have the effect of a valid gift in favour of the donee as one of the essential conditions for completing the gift was not satisfied. It cannot be forgotten that the donor was a retired Tahsildar (Revenue Official). He was likely to be familiar with the formalities which were required under his personal law to make a valid gift. It is inconceivable that he did not comply with all the necessary requirements if he intended or as a matter of fact made a completed gift in favour of defendant No. 46. The argument about the plaintiff not being a legitimate son of Syed Zainulabudin Khan had hardly any substance. There is a concurrent finding of both the courts that the plaintiff was born during the continuance of a valid marriage between Syed Zainulabudin Khan and Mehrunnissa Begam. The plaintiff was born on May 13, 1949, and the divorcee between Syed Zainulabudin Khan and Mehrunnissa Begam took place on May 30, 1949. Section 112 of the Evidence Act provides that the fact that any person was born during the continuance of a valid marriage between his mother and any man or within 280 days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten. According to the case of the defendants Syed Zainulabudin Khan, during his own, had disowned the plaintiff as his son and had divorced Mehrunnissa Begam only 17 days after his birth on the ground that she was leading an immoral life. The Courts below accepted the evidence about the date of birth of the plaintiff. As no satisfactory evidence had been produced that Syed Zainulabudin had no access to Mehrunnissa Begam till she was divorced the provisions of Section 112 were fully applicable. Even otherwise it was found that Mehrunnissa Begam was living with Syed Zainulabudin Khan at the time when the plaintiff was begotten. Asmuthunissa Begam who had supported the defendants on various matters did not deny that the plaintiff was the legitimate son of Syed Zainulabudin. We are satisfied that the decision of the courts below on the question of legitimacy of the plaintiff was correct. Finally no serious attempt was made to persuade us to hold that the old Citreon Car had been gifted by Syed Zainulabudin Khan during hislifetimeto defendant No. 3.
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Hasmat Rai & Anr Vs. Raghunath Prasad | portion of the building in which he can start his business as Chemists and Druggists he is not entitled to an inch of an extra space under Section 12(1)(f) of the Act. 18. Respondent-landlord also sought possession on the ground set out in Section 12(1)(h) which reads as under :That the accommodation is required bona fide by the landlord for the purpose of building or re-building or making thereto any substantial additions or alterations and that such building or re-building or alterations cannot be carried out without the accommodation being vacated. 19. In order to obtain possession under Section 12(1)(h) the landlord again has to establish his bona fide requirement of the accommodation in possession of the tenant for the purpose of building or re-building or making thereto any substantial additions or alterations and must further show that such building or re-building or alterations cannot be carried out without the accommodation being vacated. The case of the landlord on this point is that he wants possession of the whole of the building including the suit premises and he has Rs. 8000 in a fixed deposit account and that as the building is in a dilapidated condition, he would reconstruct the same and use it for himself both for residence and starting his business. 20. If landlord acquires possession under Section 12(1)(h), Section 18 imposes corresponding obligation which reads as under : "18. Recovery of possession for repairs and re-building and re-entry. - (1) In making any order on the grounds specified in clause (g) or clause (h) of sub-section (1) of Section 12, the court shall ascertain from the tenant whether he elects to be placed in occupation of the accommodation or part thereof from which he is to be evicted and, if the tenant so elects, shall record the fact of the election in the order and specify therein the date on or before which he shall deliver possession so as to enable the landlord to commence the work of repairs or building or re-building, as the case may be." The courts declined to grant any relief to the tenant under Section 18 on the ground that as the landlords requirement is a composite one, the tenant is not entitled to be reinducted in the building that may be reconstructed by the landlord after obtaining possession of the same. Now once it is held that the landlord is not entitled to possession for his residence and he has more than enough accommodation in his possession for carrying on his business, the composite requirement disappears. Landlords case will, therefore, have to be exclusively examined in the context of Section 12(1)(h).21. Two contentions were urged on behalf of the appellant to negative the case of the landlord in this behalf; one that the building is not in a dilapidated condition and secondly it can be repaired without vacating the premises. As all the courts have concurrently found that the building is in a dilapidated condition, this finding is entitled to respect and it is not proper for us to interfere with the same. The question would however be whether the landlord wants to reconstruct the demised portion of the premises even though he is not entitled to acquire possession of the same for his use and that he would be under an obligation to reinduct the tenant after its construction. The further question is whether the landlord is interested in reconstructing the whole building. It was alternatively contended that no attempt is made to find out whether the landlord would be in a position to reconstruct that part of the building which has come in his possession once he is not in a position to acquire possession of the demised premises for his own use. This situation calls for a fresh examination of the case of the landlord under Section 12(1)(h). If landlord is to be awarded possession under Section 12(1)(h) on the footing that, that is the only ground on which he can seek possession, it will have to be found out after giving opportunity to the landlord to prove whether he is interested in re-building that portion of the building which is occupied by the appellant and further the court should give necessary direction under Section 18. In that event the court will have also to ascertain whether the portion which is now in possession of the landlord and which he may be interested in reconstructing can be reconstructed without the tenant vacating the demised premises. As the whole foundation of the landlords case of composite requirement disappears the matter has to be examined afresh on the footing that the landlord has come to the court for possession under Section 12(1)(h) only and if he succeeds in his prayer for possession on the ground mentioned in Section 12(1)(h) it would be necessary for the court to give appropriate direction under Section 18 of the Act. As the matter has not been examined from this angle by any court it has become inevitable, even though the litigation is pending for a long time, to remit the case for examination of this aspect. The question is whether the remand should be to the first appellate Court or to the trial Court. As the first appellate Court is the fact finding court, in our opinion it would be appropriate for us to remit the case, after setting aside the decree of the first appellate Court as well as the High Court, to the first appellate Court to ascertain :(i) whether the landlord is interested in reconstructing that portion of the building which is in possession of the tenant as demised premises; (ii) whether the landlord would be in a position to reconstruct the building in his possession without the tenant being required to vacate the demised premises; and (iii) if the first two queries are answered in favour of the landlord, what should be the appropriate directions to be given in favour of the tenant as enjoined by Section 18 ? 22. | 1[ds]10. Section 12 starts with a non obstante clause thereby curtailing the right of the landlord to seek eviction of the tenant which he might have under any other law and the right of eviction is made subject to the overriding provision of Section 12. It is thus an enabling section. In order to avail of the benefit conferred by Section 12 to seek eviction of the tenant the landlord must satisfy the essential ingredients of the section. The landlord in this case seeks eviction of the tenant under Section 12(1)(f). He must, therefore, establish (i) that he requires bona fide possession of a building let for non-residential purpose for continuing or starting his business; and (ii) that he has no other reasonably suitable non-residential accommodation of his own in his occupation in the city or town concerned. The burden to establish both the requirements of Section 12(1)(f) is squarely on the landlord. And before an allegation of fact to obtain the relief required is permitted to be proved, the law of pleadings requires that such facts have to be alleged and must be put in issue. Ordinarily, therefore, when a landlord seeks eviction under Section 12(1)(f) the court after satisfying itself that there are proper pleadings must frame two issues namely (i) whether the plaintiff-landlord proves that he bona fide requires possession of a building let to the tenant for non-residential purpose for continuing or starting his business, and (ii) whether he proves that he has no other reasonably suitable non-residential accommodation of his own in the city or town concerned. Without elaborating we must notice a well-established proposition that any amount of proof offered without pleadings is generally of no relevance12. In the second appeal in the High Court the defendant-appellant moved an application under Order VI, Rule 17, for amendment of the written statement for elaborating what was already stated that not only the decree obtained by the plaintiff against the adjoining tenant of the same building namely firm of M/s. Goraldas Parmanand had become final but the plaintiff in execution of the decree way back in 1972 obtained actual possession of the whole of the area occupied by that firm and that forms major portion of the whole building. This application, though, in our opinion, (sic) to be wholly superfluous in view of the pleadings hereinbefore set out and in view of the fact that the burden of proof of establishing that the landlord was not in possession of a reasonably suitable accommodation in the same town was on the plaintiff was rejected on untenable ground that the defendant-appellant was guilty of delay and laches. This application for amendment deserves to be granted, and we grant the same. What is its impact ? Even while rejecting the application the High Court in terms observed in para 4 of its judgment as under :"Adjoining portion was vacated by firm Goraldas Parmanand as far back as in the year 1972".The High Court thus had before it a fact beyond dispute and beyond controversy that the major portion of the building was vacated by the adjoining tenant way back in 1972. This was an uncontroverted fact. Therefore remand on this point is an exercise in futility because the fact alleged in the application for amendment is admitted. After rejecting the application on wholly untenable ground the High Court in 1976 affirmed the finding wholly contrary to record as available at that stage that the plaintiff-landlord had no other reasonably suitable non-residential accommodation of his own in his occupation in the city even though on landlords own admission he had acquired vacant possession of a major portion of the building let for non-residential purpose as far back as 1972. In the course of hearing we were repeatedly told that the finding of facts are sacrosanct. The finding of fact ignoring in controvertible admitted position which would non-suit the plaintiff if upheld would be travesty of justice. The burden being on the plaintiff to show that he had no other reasonably suitable accommodation for carrying on the business which he wanted to start in the suit premises, it was for the plaintiff to show that he had not acquired possession from firm Goraldas Parmanand. Alternatively the plaintiff should have shown that the said adjacent accommodation was not reasonably suitable for the business he wanted to start. He had done neither. On the contrary plaintiff has admittedly adopted a position in the plaint that he not only wanted suit premises but also the adjoining premises of which he had obtained possession for starting his business. In such a situation if the High Court had kept in view that the plaintiff had already with him viz. possession of a building having 18 feet frontage on the main road and 90 feet depth plus portion at the back of the suit premises in his possession it would have to come to an affirmative conclusion that the plaintiff had sufficient accommodation for starting his business as a Chemists and Druggists. It was nowhere pointed out by the plaintiff that the shop of Chemists and Druggists or a medicine shop would require frontage of more than 18 feet. 18 feet frontage on a main road in a city like Bilaspur is sufficiently attractive and accommodating. The depth of the shop as given out to us being 90 feet; therefore landlord had now in his possession shop admeasuring 18 feet X 90 feet plus the area of 7 feet X 90 feet at the back of the suit premises being part of the same building. Would this not provide more than ample accommodation to the plaintiff to start his business as a Chemists and Druggists ? Not one word had been said that the accommodation which is already in possession of the plaintiff is neither suitable nor reasonably suitable nor sufficient for starting his business. In fact the very stand of plaintiff-landlord as accepted by the High Court that some portion at the back would be utilised by landlord for residence would affirmatively establish that landlord has more than enough vacant accommodation in possession for starting his businessThere is an error apparent on the face of the record inasmuch as when the High Court was faced with a dilemma whether the landlord required the whole of the building including demised premises now in possession of the appellant-tenant for starting his business of Chemists and Druggists and when the High Court had before it an indisputable fact that the respondent-landlord has obtained vacant possession of a major portion of the building which was in possession of M/s. Goraldas Parmanand, was it necessary for him to have any additional accommodation ? The High Court got over this dilemma by observing and by affirming the finding of the subordinate courts that the remaining portion of the premises would be used by the landlord for his residence and even though the portion utilised for the purpose of running the business would be smaller compared to the one to be utilized for the residence it would still not be violative of sub-section (7) of Section 12 because such a composite user would not radically change the purpose for which the accommodation was let. This finding is contrary to record and pleadings. Minutely scanning the plaint presented by the landlord there is not the slightest suggestion that he needs any accommodation for his residence. He has not even stated whether at present he is residing in some place of his own though he claimed to be residing in the same town. He does not say whether he is under any obligation to surrender that premises. Section 12(1)(e) specifically provides for a landlord obtaining possession of a building let for residential purposes if he bona fide requires the same for his own use and occupation. But there is an additional condition he must fulfill namely he must further show that he has no other reasonably suitable residential accommodation of his own in his occupation in the city or town concerned. Utter silence of the landlord on this point would be a compelling circumstance for the court not to go in search for some imaginary requirement of the landlord of accommodation for his residence. In the context of these facts the trial Court and the first appellate Court committed a manifest error apparent on the record by upholding the plaintiffs case by awarding possession also on the ground neither pleaded nor suggested. The landlord must have been quite aware that he cannot obtain possession of any accommodation for his residence. Therefore, the finding of the High Court and the courts subordinate to it that the respondent-landlord requires possession of the whole of the building including the one occupied by the tenant for starting his business as Chemists and Druggists as also for his residence is vitiated beyond repair. Once impermissible approach to the facts of the case on hand is avoided although facts found by the courts are accepted as sacrosanct yet in view of the incontrovertible position that emerges from the evidence itself that the landlord has acquired major portion of the building in which he can start his business as Chemists and Druggists he is not entitled to an inch of an extra space under Section 12(1)(f) of the ActThere is an error apparent on the face of the record inasmuch as when the High Court was faced with a dilemma whether the landlord required the whole of the building including demised premises now in possession of the appellant-tenant for starting his business of Chemists and Druggists and when the High Court had before it an indisputable fact that the respondent-landlord has obtained vacant possession of a major portion of the building which was in possession of M/s. Goraldas Parmanand, was it necessary for him to have any additional accommodation ? The High Court got over this dilemma by observing and by affirming the finding of the subordinate courts that the remaining portion of the premises would be used by the landlord for his residence and even though the portion utilised for the purpose of running the business would be smaller compared to the one to be utilized for the residence it would still not be violative of sub-section (7) of Section 12 because such a composite user would not radically change the purpose for which the accommodation was let. This finding is contrary to record and pleadings. Minutely scanning the plaint presented by the landlord there is not the slightest suggestion that he needs any accommodation for his residence. He has not even stated whether at present he is residing in some place of his own though he claimed to be residing in the same town. He does not say whether he is under any obligation to surrender that premises. Section 12(1)(e) specifically provides for a landlord obtaining possession of a building let for residential purposes if he bona fide requires the same for his own use and occupation. But there is an additional condition he must fulfill namely he must further show that he has no other reasonably suitable residential accommodation of his own in his occupation in the city or town concerned. Utter silence of the landlord on this point would be a compelling circumstance for the court not to go in search for some imaginary requirement of the landlord of accommodation for his residence. In the context of these facts the trial Court and the first appellate Court committed a manifest error apparent on the record by upholding the plaintiffs case by awarding possession also on the ground neither pleaded nor suggested. The landlord must have been quite aware that he cannot obtain possession of any accommodation for his residence. Therefore, the finding of the High Court and the courts subordinate to it that the respondent-landlord requires possession of the whole of the building including the one occupied by the tenant for starting his business as Chemists and Druggists as also for his residence is vitiated beyond repair. Once impermissible approach to the facts of the case on hand is avoided although facts found by the courts are accepted as sacrosanct yet in view of the incontrovertible position that emerges from the evidence itself that the landlord has acquired major portion of the building in which he can start his business as Chemists and Druggists he is not entitled to an inch of an extra space under Section 12(1)(f) of the Act7. The landlord in this case seeks eviction of the tenant from a building let forl purpose. He can obtain possession either for continuing or starting his business. He was a student at the relevant time. He appeared to have completed his education thereafter. It is stated in the plaint unambiguously that he wanted start business by opening a medicine shop. In other words, he wanted to start a Chemists and Druggists shop. He must, therefore, show that he has not got in his possession a reasonably suitablel accommodation of his own in his occupation in the town of BilaspurIf the answer is in affirmative, thed has thus obtained vacant possession of the whole of the premises occupied by firm Goraldas Parmanand. Looking to the map annexed to the plaint and the evidence led in the case and the dimensions of the premises stated at the hearing of this appeal the area vacated by the previous tenant would be 18 feet X 90 feet plus portion at the back of the premises occupied by the present appellant which would be 7 feet X 68 feet and it has come in possession of the respondent.The last question would be if landlord obtained vacant possession subsequent to the decree passed against the presentt by the trial Court, whether the subsequent event could be noticed by the court for moulding the decree against the present | 1 | 6,255 | 2,456 | ### Instruction:
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portion of the building in which he can start his business as Chemists and Druggists he is not entitled to an inch of an extra space under Section 12(1)(f) of the Act. 18. Respondent-landlord also sought possession on the ground set out in Section 12(1)(h) which reads as under :That the accommodation is required bona fide by the landlord for the purpose of building or re-building or making thereto any substantial additions or alterations and that such building or re-building or alterations cannot be carried out without the accommodation being vacated. 19. In order to obtain possession under Section 12(1)(h) the landlord again has to establish his bona fide requirement of the accommodation in possession of the tenant for the purpose of building or re-building or making thereto any substantial additions or alterations and must further show that such building or re-building or alterations cannot be carried out without the accommodation being vacated. The case of the landlord on this point is that he wants possession of the whole of the building including the suit premises and he has Rs. 8000 in a fixed deposit account and that as the building is in a dilapidated condition, he would reconstruct the same and use it for himself both for residence and starting his business. 20. If landlord acquires possession under Section 12(1)(h), Section 18 imposes corresponding obligation which reads as under : "18. Recovery of possession for repairs and re-building and re-entry. - (1) In making any order on the grounds specified in clause (g) or clause (h) of sub-section (1) of Section 12, the court shall ascertain from the tenant whether he elects to be placed in occupation of the accommodation or part thereof from which he is to be evicted and, if the tenant so elects, shall record the fact of the election in the order and specify therein the date on or before which he shall deliver possession so as to enable the landlord to commence the work of repairs or building or re-building, as the case may be." The courts declined to grant any relief to the tenant under Section 18 on the ground that as the landlords requirement is a composite one, the tenant is not entitled to be reinducted in the building that may be reconstructed by the landlord after obtaining possession of the same. Now once it is held that the landlord is not entitled to possession for his residence and he has more than enough accommodation in his possession for carrying on his business, the composite requirement disappears. Landlords case will, therefore, have to be exclusively examined in the context of Section 12(1)(h).21. Two contentions were urged on behalf of the appellant to negative the case of the landlord in this behalf; one that the building is not in a dilapidated condition and secondly it can be repaired without vacating the premises. As all the courts have concurrently found that the building is in a dilapidated condition, this finding is entitled to respect and it is not proper for us to interfere with the same. The question would however be whether the landlord wants to reconstruct the demised portion of the premises even though he is not entitled to acquire possession of the same for his use and that he would be under an obligation to reinduct the tenant after its construction. The further question is whether the landlord is interested in reconstructing the whole building. It was alternatively contended that no attempt is made to find out whether the landlord would be in a position to reconstruct that part of the building which has come in his possession once he is not in a position to acquire possession of the demised premises for his own use. This situation calls for a fresh examination of the case of the landlord under Section 12(1)(h). If landlord is to be awarded possession under Section 12(1)(h) on the footing that, that is the only ground on which he can seek possession, it will have to be found out after giving opportunity to the landlord to prove whether he is interested in re-building that portion of the building which is occupied by the appellant and further the court should give necessary direction under Section 18. In that event the court will have also to ascertain whether the portion which is now in possession of the landlord and which he may be interested in reconstructing can be reconstructed without the tenant vacating the demised premises. As the whole foundation of the landlords case of composite requirement disappears the matter has to be examined afresh on the footing that the landlord has come to the court for possession under Section 12(1)(h) only and if he succeeds in his prayer for possession on the ground mentioned in Section 12(1)(h) it would be necessary for the court to give appropriate direction under Section 18 of the Act. As the matter has not been examined from this angle by any court it has become inevitable, even though the litigation is pending for a long time, to remit the case for examination of this aspect. The question is whether the remand should be to the first appellate Court or to the trial Court. As the first appellate Court is the fact finding court, in our opinion it would be appropriate for us to remit the case, after setting aside the decree of the first appellate Court as well as the High Court, to the first appellate Court to ascertain :(i) whether the landlord is interested in reconstructing that portion of the building which is in possession of the tenant as demised premises; (ii) whether the landlord would be in a position to reconstruct the building in his possession without the tenant being required to vacate the demised premises; and (iii) if the first two queries are answered in favour of the landlord, what should be the appropriate directions to be given in favour of the tenant as enjoined by Section 18 ? 22.
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an additional condition he must fulfill namely he must further show that he has no other reasonably suitable residential accommodation of his own in his occupation in the city or town concerned. Utter silence of the landlord on this point would be a compelling circumstance for the court not to go in search for some imaginary requirement of the landlord of accommodation for his residence. In the context of these facts the trial Court and the first appellate Court committed a manifest error apparent on the record by upholding the plaintiffs case by awarding possession also on the ground neither pleaded nor suggested. The landlord must have been quite aware that he cannot obtain possession of any accommodation for his residence. Therefore, the finding of the High Court and the courts subordinate to it that the respondent-landlord requires possession of the whole of the building including the one occupied by the tenant for starting his business as Chemists and Druggists as also for his residence is vitiated beyond repair. Once impermissible approach to the facts of the case on hand is avoided although facts found by the courts are accepted as sacrosanct yet in view of the incontrovertible position that emerges from the evidence itself that the landlord has acquired major portion of the building in which he can start his business as Chemists and Druggists he is not entitled to an inch of an extra space under Section 12(1)(f) of the ActThere is an error apparent on the face of the record inasmuch as when the High Court was faced with a dilemma whether the landlord required the whole of the building including demised premises now in possession of the appellant-tenant for starting his business of Chemists and Druggists and when the High Court had before it an indisputable fact that the respondent-landlord has obtained vacant possession of a major portion of the building which was in possession of M/s. Goraldas Parmanand, was it necessary for him to have any additional accommodation ? The High Court got over this dilemma by observing and by affirming the finding of the subordinate courts that the remaining portion of the premises would be used by the landlord for his residence and even though the portion utilised for the purpose of running the business would be smaller compared to the one to be utilized for the residence it would still not be violative of sub-section (7) of Section 12 because such a composite user would not radically change the purpose for which the accommodation was let. This finding is contrary to record and pleadings. Minutely scanning the plaint presented by the landlord there is not the slightest suggestion that he needs any accommodation for his residence. He has not even stated whether at present he is residing in some place of his own though he claimed to be residing in the same town. He does not say whether he is under any obligation to surrender that premises. Section 12(1)(e) specifically provides for a landlord obtaining possession of a building let for residential purposes if he bona fide requires the same for his own use and occupation. But there is an additional condition he must fulfill namely he must further show that he has no other reasonably suitable residential accommodation of his own in his occupation in the city or town concerned. Utter silence of the landlord on this point would be a compelling circumstance for the court not to go in search for some imaginary requirement of the landlord of accommodation for his residence. In the context of these facts the trial Court and the first appellate Court committed a manifest error apparent on the record by upholding the plaintiffs case by awarding possession also on the ground neither pleaded nor suggested. The landlord must have been quite aware that he cannot obtain possession of any accommodation for his residence. Therefore, the finding of the High Court and the courts subordinate to it that the respondent-landlord requires possession of the whole of the building including the one occupied by the tenant for starting his business as Chemists and Druggists as also for his residence is vitiated beyond repair. Once impermissible approach to the facts of the case on hand is avoided although facts found by the courts are accepted as sacrosanct yet in view of the incontrovertible position that emerges from the evidence itself that the landlord has acquired major portion of the building in which he can start his business as Chemists and Druggists he is not entitled to an inch of an extra space under Section 12(1)(f) of the Act7. The landlord in this case seeks eviction of the tenant from a building let forl purpose. He can obtain possession either for continuing or starting his business. He was a student at the relevant time. He appeared to have completed his education thereafter. It is stated in the plaint unambiguously that he wanted start business by opening a medicine shop. In other words, he wanted to start a Chemists and Druggists shop. He must, therefore, show that he has not got in his possession a reasonably suitablel accommodation of his own in his occupation in the town of BilaspurIf the answer is in affirmative, thed has thus obtained vacant possession of the whole of the premises occupied by firm Goraldas Parmanand. Looking to the map annexed to the plaint and the evidence led in the case and the dimensions of the premises stated at the hearing of this appeal the area vacated by the previous tenant would be 18 feet X 90 feet plus portion at the back of the premises occupied by the present appellant which would be 7 feet X 68 feet and it has come in possession of the respondent.The last question would be if landlord obtained vacant possession subsequent to the decree passed against the presentt by the trial Court, whether the subsequent event could be noticed by the court for moulding the decree against the present
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Jugalkishore Saraf Vs. Raw Cotton Co. Ltd | Bom. 691) and also in Bhagwant Balajirao and others v. Rajaram Sajnaji & others(A.I.R. 1947 Bom 157) appears to have been the only justification for making the application in the manner which the respondents did. That defect however according to the very same decision in Bhagwant Balajirao and others v. Rajaram Sajnaji & others(A.I.R. 1947 Bom 157) was purely technical and might be allowed to be cured by amendment of the application. As a matter of fact Order XXI, rule 17 lays down the procedure on receiving applications for execution of a decree and enjoins upon the Court the duty to ascertain whether such of the requirements of rules 11 to 14 as may be applicable to the case have been complied with and if they have not been complied with the Court has to reject the application or allow the defect to be remedied then and there or within a time to be fixed by it. When the application for execution in the present case was received by the City Civil Court, the Court should have scrutinised the application as required by Order XXI, rule 17(1) and if it was found that therequirements of rules 11 to 14 as may be applicable were not complied with as is contended for by the Appellant, the Court should have rejected the application or allowed the defect to be remedied then and there or within a time to be fixed by the Court. Nothing of the kind was ever done by the City Civil Court nor was any objection in that behalf taken on behalf of the Appellant at any time until the matter came before this Court.57. On the 27th March, 1952 however a further application for execution was filed by the Respondents in the City Civil Court specifying in column J the mode in which the assistance of the Court was required and it was by ordering attachment and sale of the moveable property of the Appellant therein specified. This further application for execution was a sufficient compliance with the provisions of Order XXI, rule I 1 (2) (j) and was sufficient under the circumstances to cure the defect, if any, in the original application for execution made by the Respondents to the City Civil Court on the 25th April, 1951. This objection of the Appellant therefore is devoid of any substance and does not avail him.58. The appeal accordingly fails and is dismissed with costs.IMAM J.-59. I have had the advantage of perusing the judgments of my learned brethren. I agree that the appeal must be dismissed with costs and in the view expressed by them that the respondent should be permitted under the provisions of section 146 of the Code of Civil Procedure to execute the decree passed in favour of Habib & Sons, as one claiming under the latter.60. The document under which the respondent claimed to execute the decree was treated as a deed of transfer in the courts below and not merely as an agreement to transfer. By this document there was a transfer of all the book and other debts due to Habib & Sons in connection with the Indian business and the full benefit of all securities for the debts. The document, however, neither in terms, nor by any reasonable inter-pretation of its contents purported to transfer any decree which Habib & Sons may obtain in the future. It seems to me, therefore, that the respondent cannot claim to be a transferee of the decree, which was subsequently obtained by Habib & Sons, by an assignment in writing within the meaning of Order XXI, rule 16 of the Code of Civil Procedure.61. Order XXI of the Code of Civil Procedure relates to execution of decrees and orders. Rule 1 of that Order relates to payments under a decree which has been passed. Rules 4 to 9 relate to the transfer of an existing decree for execution. The normal rule is that a decree can be executed only by the person in whose name it stands and rule 10 enables him to do so, while rule 16 of Order XXI, enables the transferee of the decree to execute it in the same manner and subject to the same conditions as an application for execution made by the decree-holder. It seems to me, therefore, that there must be a decree in existence which is transferred before the transferee can benefit from the provisions of rule 16. The ordinary and natural meaning of the words of rule, 16 can carry no other interpretation and the question of a strict and narrow interpretation of its provisions does not arise. The position of an assignee, before a decree is passed, is amply safeguarded by the provisions of Order XXII, rule 10, which enables him to obtain the leave of the Court to continue the suit. Thereafter the decree, if any, would be in his name which he could execute. I agree with my learned brother Das, J., that the provisions of Order XXI, rule 16 contemplate the actual transfer by an assignment in writing of a decree after it is passed and that while a transfer of or an agree- ment to transfer a decree that may be passed in future may, in equity, entitle the intending transferee to claim the beneficial interest in the decree after it is passed, such equitable transfer does not render the transferee a transferee of the decree by assignment in writing within the meaning of Order XXI, rule 16. In this respect the decisions of the Madras High Court in Basroovittil Bhandari v. Ramchandra Kamthi((1907] 17 M.L.J. 391)and of the Calcutta High Court in Mathurapore Zamindary Co. Ltd. v. Bhasaram Mandal and Prabashinee Debi v. Rasiklal Banerji are correct.62. As at present advised, I would like to express no opinion as to whether the expression "by operation of law" can be given the interpretation suggested by my learned brother Das, J., as it is unnecessary to do so in the present appeal.63. | 0[ds]It is quite plain that if .Order XXI, rule 16 is thus construed the respondent company cannot possibly contend that the decree now sought to be executed by them was, after its passing, transferred to them by an assignment in writing within the meaning of that rule, for the document in question was executed on the 7th February 1949 but the decree was passed subsequently on the 15th December 1949. Whether they can claim to have become the transferees of the decree after it was passed by operation of law within the meaning of this rule or to have otherwise become entitled to the benefit of it is a different matter which will be considered later on. For the moment it is enough to say that there had been no transfer of the decree to the respondent company by any assignment in writing executed after the decree was passed, as contemplated and required by Order XXI, ruleis to be noted that to attract the application of this equitable principle there must be an agreement to transfer the decree to be passed in future. As soon as the decree is passed equity fastens upon it and, by treating as done what ought to be done, that is by assuming that the transferor has executed a deed transferring the decree to the transferee as in all conscience he should do equity regards the transferee as the beneficial owner of the after-acquired decree. The equitable principle we are considering only implements or effectuates the agreement of the parties. This equity does not, however, take upon itself the task of making any new agreement for the parties either by filling up the lacunas or gap in their agreement or otherwise. If, therefore, there is no agreement between the parties to transfer the future decree the equitable principle referred to above can- not come into play at all. In order, therefore, to test the propriety of the application of this equitable principle to the facts of the present case we have to enquire whether there was here any agreement between the parties to transfer the decree to be passed in the then pendingHigh Court has held that the decree to be passed was also included in this document. The reasoning appears to be this: Clause 1 of the document comprised six several items of properties. Each of these items referred to "the said Indian business". The Fourth item was "All the book and other debts due to the vendors in connection with the said Indian business and the full benefits of all securities for the debts" and the last and residuary item was "All other property to which the vendors are entitled in connection with the said Indian business". One of the book debts was the subject-matter of the pending suit. The decree that the plaintiff would obtain in, that suit would, therefore, be property or right "in connection with the said Indian business". Therefore, as they were transferring all property in connection with their business they must have intended to transfer the future decree also. Therefore, it must be regarded as covered by the document. I am unable to accept this line of reasoning. It cannot be overlooked that there was no mention in that document of any suit or decree to be passed in that suit as one would have expected if the parties really intended to transfer the future decreethe assignment of the debt the respondent company undoubtedly became entitled to get themselves substituted under Order XXII, rule 10 as plaintiffs in the pending suit but they did not choose to do, so and allowed the transferors to continue the suit and a decree to be passed in their favour. The true position, therefore, is that at the date of the transfer of the debt to the respondent company the transferors could not transfer the decree, because the decree did not exist. On a true construction of the document the transferors agreed only to transfer, besides the five items of specified properties, "All other properties to which the vendors are entitled", that is to say, all properties to which at the date of the document they were entitled. At the date of the document they had the right to proceed with the suit and to get such relief as the Court by its decree might award but no decree had yet been passed in that suit, and, therefore, property to which they were then entitled could not include any decree that might in future bethere is a contract for the transfer of property which is not in existence at the date of the contract, the intending transferee may, when the property comes into existence, enforce the contract by specific performance, provided the contract is of the kind which is specifically enforceable in equity. It is only when the transferor voluntarily executes a deed of transfer as in all conscience he should do or is compelled to do so by a decree for specific performance that the legal title of the transferor in that property passes from him to the transferee. This transfer of title is brought about not by the prior agreement for transfer but by the subsequent deed of transfer. This process obviously involves delay, trouble and expenses. To obviate these difficulties equity steps in again to short circuit the process. Treating as done what ought to be done, that is to say, assuming that the intending transferor has executed a deed of transfer in favour of the intending transferee immediately after the property came into existence, equity fastens upon the after- acquired property and treats the beneficial interest therein as transferred to the intendingis true that that agreement makes the application of the equitable principle possible or I may even say that it sots the equity in motion but, nevertheless, it is equity alone which denudes the transferor of his interest in the after-acquired property and passes it to the intending transferee. That being the true position, as I think it is, the after acquired property cannot, logically and on principle, be said to have been transferred to the intending transferee by the agreement in writing. I do not see on what principle this transfer can be said to relate back to the previousappellants have a right in equity to have the performing rights assigned to them and in that sense are equitable owners of those rights; but they are not assignees of the rights within the meaning of the statute. This contention, therefore, fails",The above observations, to my mind, completely cover the present case. On a parity of reasoning the respondent company may have, by operation of equity, become entitled to the benefit of the decree as soon as it was passed but to say that is not to say that there has been a transfer of the decree by the document of the 7th February 1949. And so it has been held in several cases to which reference may now beplaintiff claiming to be the assignee by way of mortgage of that decree instituted this suit against two defendants. The defendant No. 1 was the plaintiff in the earlier suit who had mortgaged to the plaintiff the decree to be passed in that suit and the defendant No. 2 was a person who claimed to be a transferee of the same decree under a conveyance subsequently executed in his favour by the first defendant. The judgment-debtor under the decree in the first suit was not made a party defendant in this suit. The first defendant did not contest this suit and it was only contested by the second defendant. One of the points raised by the contesting defendant was that this subsequent suit which was one for a, pure declaration of title was bad under section 42 of the Specific Relief Act inasmuch as the plaintiff did not pray for consequential relief in the shape of a permanent injunction restraining him, the contesting defendant, from executing theHigh Court allowed the appeal and by its decree declared that Wahed was in his lifetime and those who became his heirs were entitled to recover the properties in suit. Abedoonissa applied for execution of the decree for herself and for one Wajed who was said to be the posthumous son of Wahed born of her womb. Objection was taken, inter alia, that Wajed was not the legitimate son of Wahed. This objection was overruled and it was held that Abedoonissa was entitled to execute the decree for herself and as the guardian of Wajed. Then the judgment-debtor Abdool died. Abdools widow Ameeroonissa filed a suit for a declaration that Wajed was not the legitimate son of Wahed and for setting aside the last mentioned order. Abedoonissa took the point that the matter was concluded by principles of res judicata. To that Ameeroonissas reply was that the proceeding in which the question of the legitimacy of Wajed was decided was wholly incompetent so far asWajed was concerned because, the decree being in favour of Abedoonissa, Wajed was not a transferee of the decree within the meaning of section 208 of Act VIII of 1859 corresponding to Order XXI, rule 16 of the present Code and could not apply for execution and that being so any adjudication on his status in such proceeding was not binding attransfer of property is not by any assignment in writing executed by the transferor in favour of the transferee but is brought about by the operation of the statutory-provisions relating to and governing execution of decrees. Thus this Privy Council decision itself shows that transfers "by operation of law" were not intended by it to be confined to the three cases of death, devolution or succession.More often than not transfers "by operation of law" will be found to be brought about by the operation of statutory law. Thus when a person dies testate there is a devolution of his properties to his legal representatives by operation of the law of testamentary succession which is now mainly statutory in this country. When a person is adjudged insolvent his properties vest in the official assignee and that transfer is brought about by the operation of the insolvency laws which have been codified. Court sale of property in execution of a decree vests the right, title and interest of the judgment-debtor in that property in the auction-purchaser thereby effecting a transfer by operation of the law embodied in the Code of Civil Procedure. Likewise, statutes in some cases provide for the forfeiture of property, e.g. property in relation to which an offence has been committed, namely, illicit liquor or opium, etc., and thereby effect a transfer of such property from the delinquent owner to the State. It is neither necessary nor profitable to try and enumerate exhaustively the instances of transfer by operation of law. Suffice it to say that there is DO warrant for confining transfers "by operation of law" to transfers by operation of statutory laws. When a Hindu or a Mohammaden dies intestate and his heirs succeed to his estate there is a transfer not by any statute but by the operation of their respective personal law. In order to constitute a transfer of property "by operation of law" all that is necessary is that there must be a passing of one persons rights in property to another person by the force of some law, statutory oris difficult to appreciate the implication of the first proposition. When on a true construction of the deed it actually operates to transfer a decree then in existence, no equitable principle need be invoked, for in that case the transfer is by the deed itself and as such is by an assignment in writing. It is only when the deed does not effectively transfer the decree because, for instance, the decree is not then in existence, but constitutes only an agreement to transfer the decree after it is passed that the invocation of the equitable principle becomes necessary and it is in those circumstances that equity fastens and operates upon the decree when it is passed and effects a transfer of it. If, however, the learned Judges meant to say that if on a true construction of the deed it did not cover the decree then the equitable principle would not come into play at all and in that case the principle of transfer by operation of law could not be invoked, no exception need then beanswer is that those words are not meaningless but have effect in some cases. Take, by way of an illustration, the second proviso to Order XXI, rule 16 which provides that where a decree for payment of money against two or more persons has been transferred to one of them it shall not be executed against the others. This is a provision which forbids one of the judgment-debtors to whom alone the decree for payment of money has been transferred from making an application for execution and, therefore, he cannot apply under section 146 as a person claiming under the decree-holder. As the respondent company do not fall within Order XXI, rule 16 because the document did not cover the decree to be passed in future in the then pending suit that rule cannot be a bar to the respondent company making an application for execution under section 146 if they satisfy the other requirement of that section, namely, that they can, be said to be claiming under thethe premises, in the eye of the law, the position of the transferors, vis-a-vis the respondent company, was nothing more than that of benamidars for the respondent company and when the decree was passed for the recovery of that debt it was the respondent company who were the real owners of the decree. As between the respondent company and the transferors the former may well claim a declaration of their title. Here there is no question of transfer of the decree by the transferors to the respondent company by assignment of the decree in writing or by operation of law and the respondent company cannot apply for execution of thedecree under Order XXI, rule 16. But the respondent company are, nonetheless, the real owners of the decree because it is passed in relation to and for the recovery of the debt which undoubtedly they acquired by transfer by the document under consideration. The respondent company were after the transfer, the owners of the debt which was the subject matter of the suit and the legal incidents thereof and consequently were the real owners of the decree. The respondent company derived their title to the debt by transfer from the transferors and claimed the same under the latter. When the respondent company be, came the owner of the decree immediately on its passing they must, in relation to the decree, be also regarded as persons claiming under the transferors. The respondent company would not have become the owner of the decree unless they were the owners of the debt and if they claimed the debt under the trans- ferors they must also claim the relative decree under the transferors as accretions, as it were, to their original right as transferees of the debt. In my opinion, the respondent company are entitled under section 146 to make the application for execution which the original decree- holders couldresult, therefore, is that this appeal must be dismissed withassignee of a decree could only make one application for execution under Order XXI, rule 1 1 of the Code of Civil Procedure specifying therein the mode in which the assistance of the Courtwas required and it was only after such application had been made to the Court which passed the decree that the Court would issue notice under Order XXIL rule 16 to the transferor and the judgment debtor and the decree would not be executed until the Court had heard their objections if any to its execution. | 0 | 22,380 | 2,857 | ### Instruction:
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Bom. 691) and also in Bhagwant Balajirao and others v. Rajaram Sajnaji & others(A.I.R. 1947 Bom 157) appears to have been the only justification for making the application in the manner which the respondents did. That defect however according to the very same decision in Bhagwant Balajirao and others v. Rajaram Sajnaji & others(A.I.R. 1947 Bom 157) was purely technical and might be allowed to be cured by amendment of the application. As a matter of fact Order XXI, rule 17 lays down the procedure on receiving applications for execution of a decree and enjoins upon the Court the duty to ascertain whether such of the requirements of rules 11 to 14 as may be applicable to the case have been complied with and if they have not been complied with the Court has to reject the application or allow the defect to be remedied then and there or within a time to be fixed by it. When the application for execution in the present case was received by the City Civil Court, the Court should have scrutinised the application as required by Order XXI, rule 17(1) and if it was found that therequirements of rules 11 to 14 as may be applicable were not complied with as is contended for by the Appellant, the Court should have rejected the application or allowed the defect to be remedied then and there or within a time to be fixed by the Court. Nothing of the kind was ever done by the City Civil Court nor was any objection in that behalf taken on behalf of the Appellant at any time until the matter came before this Court.57. On the 27th March, 1952 however a further application for execution was filed by the Respondents in the City Civil Court specifying in column J the mode in which the assistance of the Court was required and it was by ordering attachment and sale of the moveable property of the Appellant therein specified. This further application for execution was a sufficient compliance with the provisions of Order XXI, rule I 1 (2) (j) and was sufficient under the circumstances to cure the defect, if any, in the original application for execution made by the Respondents to the City Civil Court on the 25th April, 1951. This objection of the Appellant therefore is devoid of any substance and does not avail him.58. The appeal accordingly fails and is dismissed with costs.IMAM J.-59. I have had the advantage of perusing the judgments of my learned brethren. I agree that the appeal must be dismissed with costs and in the view expressed by them that the respondent should be permitted under the provisions of section 146 of the Code of Civil Procedure to execute the decree passed in favour of Habib & Sons, as one claiming under the latter.60. The document under which the respondent claimed to execute the decree was treated as a deed of transfer in the courts below and not merely as an agreement to transfer. By this document there was a transfer of all the book and other debts due to Habib & Sons in connection with the Indian business and the full benefit of all securities for the debts. The document, however, neither in terms, nor by any reasonable inter-pretation of its contents purported to transfer any decree which Habib & Sons may obtain in the future. It seems to me, therefore, that the respondent cannot claim to be a transferee of the decree, which was subsequently obtained by Habib & Sons, by an assignment in writing within the meaning of Order XXI, rule 16 of the Code of Civil Procedure.61. Order XXI of the Code of Civil Procedure relates to execution of decrees and orders. Rule 1 of that Order relates to payments under a decree which has been passed. Rules 4 to 9 relate to the transfer of an existing decree for execution. The normal rule is that a decree can be executed only by the person in whose name it stands and rule 10 enables him to do so, while rule 16 of Order XXI, enables the transferee of the decree to execute it in the same manner and subject to the same conditions as an application for execution made by the decree-holder. It seems to me, therefore, that there must be a decree in existence which is transferred before the transferee can benefit from the provisions of rule 16. The ordinary and natural meaning of the words of rule, 16 can carry no other interpretation and the question of a strict and narrow interpretation of its provisions does not arise. The position of an assignee, before a decree is passed, is amply safeguarded by the provisions of Order XXII, rule 10, which enables him to obtain the leave of the Court to continue the suit. Thereafter the decree, if any, would be in his name which he could execute. I agree with my learned brother Das, J., that the provisions of Order XXI, rule 16 contemplate the actual transfer by an assignment in writing of a decree after it is passed and that while a transfer of or an agree- ment to transfer a decree that may be passed in future may, in equity, entitle the intending transferee to claim the beneficial interest in the decree after it is passed, such equitable transfer does not render the transferee a transferee of the decree by assignment in writing within the meaning of Order XXI, rule 16. In this respect the decisions of the Madras High Court in Basroovittil Bhandari v. Ramchandra Kamthi((1907] 17 M.L.J. 391)and of the Calcutta High Court in Mathurapore Zamindary Co. Ltd. v. Bhasaram Mandal and Prabashinee Debi v. Rasiklal Banerji are correct.62. As at present advised, I would like to express no opinion as to whether the expression "by operation of law" can be given the interpretation suggested by my learned brother Das, J., as it is unnecessary to do so in the present appeal.63.
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legal representatives by operation of the law of testamentary succession which is now mainly statutory in this country. When a person is adjudged insolvent his properties vest in the official assignee and that transfer is brought about by the operation of the insolvency laws which have been codified. Court sale of property in execution of a decree vests the right, title and interest of the judgment-debtor in that property in the auction-purchaser thereby effecting a transfer by operation of the law embodied in the Code of Civil Procedure. Likewise, statutes in some cases provide for the forfeiture of property, e.g. property in relation to which an offence has been committed, namely, illicit liquor or opium, etc., and thereby effect a transfer of such property from the delinquent owner to the State. It is neither necessary nor profitable to try and enumerate exhaustively the instances of transfer by operation of law. Suffice it to say that there is DO warrant for confining transfers "by operation of law" to transfers by operation of statutory laws. When a Hindu or a Mohammaden dies intestate and his heirs succeed to his estate there is a transfer not by any statute but by the operation of their respective personal law. In order to constitute a transfer of property "by operation of law" all that is necessary is that there must be a passing of one persons rights in property to another person by the force of some law, statutory oris difficult to appreciate the implication of the first proposition. When on a true construction of the deed it actually operates to transfer a decree then in existence, no equitable principle need be invoked, for in that case the transfer is by the deed itself and as such is by an assignment in writing. It is only when the deed does not effectively transfer the decree because, for instance, the decree is not then in existence, but constitutes only an agreement to transfer the decree after it is passed that the invocation of the equitable principle becomes necessary and it is in those circumstances that equity fastens and operates upon the decree when it is passed and effects a transfer of it. If, however, the learned Judges meant to say that if on a true construction of the deed it did not cover the decree then the equitable principle would not come into play at all and in that case the principle of transfer by operation of law could not be invoked, no exception need then beanswer is that those words are not meaningless but have effect in some cases. Take, by way of an illustration, the second proviso to Order XXI, rule 16 which provides that where a decree for payment of money against two or more persons has been transferred to one of them it shall not be executed against the others. This is a provision which forbids one of the judgment-debtors to whom alone the decree for payment of money has been transferred from making an application for execution and, therefore, he cannot apply under section 146 as a person claiming under the decree-holder. As the respondent company do not fall within Order XXI, rule 16 because the document did not cover the decree to be passed in future in the then pending suit that rule cannot be a bar to the respondent company making an application for execution under section 146 if they satisfy the other requirement of that section, namely, that they can, be said to be claiming under thethe premises, in the eye of the law, the position of the transferors, vis-a-vis the respondent company, was nothing more than that of benamidars for the respondent company and when the decree was passed for the recovery of that debt it was the respondent company who were the real owners of the decree. As between the respondent company and the transferors the former may well claim a declaration of their title. Here there is no question of transfer of the decree by the transferors to the respondent company by assignment of the decree in writing or by operation of law and the respondent company cannot apply for execution of thedecree under Order XXI, rule 16. But the respondent company are, nonetheless, the real owners of the decree because it is passed in relation to and for the recovery of the debt which undoubtedly they acquired by transfer by the document under consideration. The respondent company were after the transfer, the owners of the debt which was the subject matter of the suit and the legal incidents thereof and consequently were the real owners of the decree. The respondent company derived their title to the debt by transfer from the transferors and claimed the same under the latter. When the respondent company be, came the owner of the decree immediately on its passing they must, in relation to the decree, be also regarded as persons claiming under the transferors. The respondent company would not have become the owner of the decree unless they were the owners of the debt and if they claimed the debt under the trans- ferors they must also claim the relative decree under the transferors as accretions, as it were, to their original right as transferees of the debt. In my opinion, the respondent company are entitled under section 146 to make the application for execution which the original decree- holders couldresult, therefore, is that this appeal must be dismissed withassignee of a decree could only make one application for execution under Order XXI, rule 1 1 of the Code of Civil Procedure specifying therein the mode in which the assistance of the Courtwas required and it was only after such application had been made to the Court which passed the decree that the Court would issue notice under Order XXIL rule 16 to the transferor and the judgment debtor and the decree would not be executed until the Court had heard their objections if any to its execution.
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PARADEEP PHOSPHATES LIMITED Vs. STATE OF ORISSA | any material terms of service. Section 9A of the Act is a provision in consonance with the Constitutional mandate which assures the protection of principles of natural justice i.e., no one shall be condemned unless heard. For the guidance, legislature prescribed the Fourth Schedule and it is clearly mentioned in Section 9A of the Act that before changing either of the things as envisaged in the Fourth Schedule, prior notice must be given to the employee. In the instant case, the grievance of the Trade Union before the Tribunal was that withdrawal of the age of superannuation i.e., restoration of the age from 60 years to 58 years, amounts to contravention of Clause 8 of the Fourth Schedule, hence, employer was bound to give prior notice which employer cannot escape. Therefore, the action of the employer is bad in law and liable to be set aside which was eventually upheld by the Tribunal and the High Court.11. Undoubtedly, it is a cardinal principle of law that beneficial laws should be construed liberally. The Industrial Dispute Act, 1947 is one of the welfare legislations which intends to provide and protect the benefits of the employees. Hence, it shall be interpreted in a liberal and broad manner so that maximum benefits could reach to the employees. Any attempt to do strict interpretation would undermine the intention of the legislature. In a catena of cases, this Court has held that the welfare legislation shall be interpreted in a liberal way.12.The grievance of the appellant-Company before this Court is that the increase in the superannuation age of the employees was temporary in nature in order to combat the losses and in no circumstances, it can be said that withdrawal of it amounts to withdrawal of customary concession or privilege or change in usage. Eighth clause of the Fourth Schedule says“withdrawal of any customary concession or privilege or change in usage”. The whole dispute revolves around the interpretation of the terms customary concession, privilege or change in usage. In the instant case, we are mainly concerned with the term ‘privilege’. The word“privilege”as such is not defined in the Act. In the absence of statutory definition, we have to take recourse of the dictionary or general meaning of the term“privilege”. The Dictionary meaning of the word privilege means a“special right, advantage or immunity granted or available only to a particular person or ground”. In other words, a particular and peculiar benefit or advantage enjoyed by a person, company, or class, beyond the common advantages of others.13. It is admitted position that the Board of Directors took the decision of enhancement of age of retirement and it came into force with retrospective effect from 27.05.1998 as mentioned in the order dated 19.11.1998. Though, this decision implemented without the amendment in the Standing Orders and Rules, yet impliedly it got the force as a service condition since it directly relates with the service condition of the employees. Age of superannuation is an integral part of the service condition of the employee. Also, enhancement of superannuation age would impliedly amount to a privilege since it was provided particularly for the central public sector employees. At this juncture, the Division Bench of the High Court held as under:“However the facts of this case is little bit different because the necessary modification has not been incorporated either in the Service Rules or in the Certified Standing Order enhancing the age of superannuation from 58 years to 60 years, but the Central Government being the competent authority has directed the Board of Directors to enhance the age of superannuation and accordingly it has been enhanced in the year 1998 and thereafter it has been reduced vide order dtd 17.7.2002 by the same process, hence we are of the considered view that by passing the order dtd 17.7.2002 the privilege has been granted to the workmen has been recalled by altering the same by reducing the age of superannuation from 60 years to 58 years is alteration which is detrimental to the interest of the workmen.”14. No doubt, the enhancement of the superannuation age was temporary in nature in order to achieve certain objectives and also it is not deniable that yet employees would be governed by the Service Rules and the Certified Standing Orders which were not amended. However, if we allow the plea of the appellant-Company then it would defeat the object of legislature because legislature could never have intended that employees would be condemned without giving them right of reasonable hearing. Naturally, every employee is under the expectation that before reducing his superannuation age, he would be given a proper chance to be heard. Right to work is a vital right of every employee and in our view, it shall not be taken away without giving reasonable opportunity of being heard otherwise it would be an act of violation of the Constitutional mandate.15. Moreover, the contention of the appellant-Company that the object of enhancement of superannuation age was just to save the industries from huge losses, therefore, it does not violate any statutory right of the employees, cannot be sustained in the eyes of law and also it does not give the license to the appellant-Company to act in contravention of law since it is a cannon of law that everyone is expected to act as per the mandate of law.16. To sum up, we are of the view that at the very moment when the order of enhancement of superannuation of the employees came into force though temporary in nature, it would amount to privilege to employees since it is a special right granted to them. Hence, any unilateral withdrawal of such privilege amounts to contravention of Section 9A of the Act and such act of the employer is bad in the eyes of law.17. In view of above detailed discussion, we are of the considered view that there is no error in the impugned judgment of the High Court, hence, we are not inclined to interfere in it. | 0[ds]At the first sight of the provision, prima facie, it appears that the employer is bound to give minimum 21notice to the employee if employer intends to change any material terms of service. Section 9A of the Act is a provision in consonance with the Constitutional mandate which assures the protection of principles of natural justice i.e., no one shall be condemned unless heard. For the guidance, legislature prescribed the Fourth Schedule and it is clearly mentioned in Section 9A of the Act that before changing either of the things as envisaged in the Fourth Schedule, prior notice must be given to the employee. In the instant case,grievance of theTrade Union before the Tribunal was that withdrawal of the age of superannuation i.e., restoration of the age from 60 years to 58 years, amounts to contravention of Clause 8 of the Fourth Schedule, hence, employer was bound to give prior notice which employer cannot escape. Therefore, the action of the employer is bad in law and liable to be set aside which was eventually upheld by the Tribunal and the HighIt is admitted position that the Board of Directors took the decision of enhancement of age of retirement and it came into force with retrospective effect from 27.05.1998 as mentioned in the order dated 19.11.1998. Though, this decision implemented without the amendment in the Standing Orders and Rules, yet impliedly it got the force as a service condition since it directly relates with the service condition of the employees. Age of superannuation is an integral part of the service condition of the employee. Also, enhancement of superannuation age would impliedly amount to a privilege since it was provided particularly for the central public sectorNo doubt, the enhancement of the superannuation age was temporary in nature in order to achieve certain objectives and also it is not deniable that yet employees would be governed by the Service Rules and the Certified Standing Orders which were not amended. However, if we allow the plea of thethen it would defeat the object of legislature because legislature could never have intended that employees would be condemned without giving them right of reasonable hearing. Naturally, every employee is under the expectation that before reducing his superannuation age, he would be given a proper chance to be heard. Right to work is a vital right of every employee and in our view, it shall not be taken away without giving reasonable opportunity of being heard otherwise it would be an act of violation of the ConstitutionalMoreover, the contention of thethat the object of enhancement of superannuation age was just to save the industries from huge losses, therefore, it does not violate any statutory right of the employees, cannot be sustained in the eyes of law and also it does not give the license to theto act in contravention of law since it is a cannon of law that everyone is expected to act as per the mandate ofTo sum up, we are of the view that at the very moment when the order of enhancement of superannuation of the employees came into force though temporary in nature, it would amount to privilege to employees since it is a special right granted to them. Hence, any unilateral withdrawal of such privilege amounts to contravention of Section 9A of the Act and such act of the employer is bad in the eyes ofIn view of above detailed discussion, we are of the considered view that there is no error in the impugned judgment of the High Court, hence, we are not inclined to interfere in it. | 0 | 2,717 | 646 | ### 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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any material terms of service. Section 9A of the Act is a provision in consonance with the Constitutional mandate which assures the protection of principles of natural justice i.e., no one shall be condemned unless heard. For the guidance, legislature prescribed the Fourth Schedule and it is clearly mentioned in Section 9A of the Act that before changing either of the things as envisaged in the Fourth Schedule, prior notice must be given to the employee. In the instant case, the grievance of the Trade Union before the Tribunal was that withdrawal of the age of superannuation i.e., restoration of the age from 60 years to 58 years, amounts to contravention of Clause 8 of the Fourth Schedule, hence, employer was bound to give prior notice which employer cannot escape. Therefore, the action of the employer is bad in law and liable to be set aside which was eventually upheld by the Tribunal and the High Court.11. Undoubtedly, it is a cardinal principle of law that beneficial laws should be construed liberally. The Industrial Dispute Act, 1947 is one of the welfare legislations which intends to provide and protect the benefits of the employees. Hence, it shall be interpreted in a liberal and broad manner so that maximum benefits could reach to the employees. Any attempt to do strict interpretation would undermine the intention of the legislature. In a catena of cases, this Court has held that the welfare legislation shall be interpreted in a liberal way.12.The grievance of the appellant-Company before this Court is that the increase in the superannuation age of the employees was temporary in nature in order to combat the losses and in no circumstances, it can be said that withdrawal of it amounts to withdrawal of customary concession or privilege or change in usage. Eighth clause of the Fourth Schedule says“withdrawal of any customary concession or privilege or change in usage”. The whole dispute revolves around the interpretation of the terms customary concession, privilege or change in usage. In the instant case, we are mainly concerned with the term ‘privilege’. The word“privilege”as such is not defined in the Act. In the absence of statutory definition, we have to take recourse of the dictionary or general meaning of the term“privilege”. The Dictionary meaning of the word privilege means a“special right, advantage or immunity granted or available only to a particular person or ground”. In other words, a particular and peculiar benefit or advantage enjoyed by a person, company, or class, beyond the common advantages of others.13. It is admitted position that the Board of Directors took the decision of enhancement of age of retirement and it came into force with retrospective effect from 27.05.1998 as mentioned in the order dated 19.11.1998. Though, this decision implemented without the amendment in the Standing Orders and Rules, yet impliedly it got the force as a service condition since it directly relates with the service condition of the employees. Age of superannuation is an integral part of the service condition of the employee. Also, enhancement of superannuation age would impliedly amount to a privilege since it was provided particularly for the central public sector employees. At this juncture, the Division Bench of the High Court held as under:“However the facts of this case is little bit different because the necessary modification has not been incorporated either in the Service Rules or in the Certified Standing Order enhancing the age of superannuation from 58 years to 60 years, but the Central Government being the competent authority has directed the Board of Directors to enhance the age of superannuation and accordingly it has been enhanced in the year 1998 and thereafter it has been reduced vide order dtd 17.7.2002 by the same process, hence we are of the considered view that by passing the order dtd 17.7.2002 the privilege has been granted to the workmen has been recalled by altering the same by reducing the age of superannuation from 60 years to 58 years is alteration which is detrimental to the interest of the workmen.”14. No doubt, the enhancement of the superannuation age was temporary in nature in order to achieve certain objectives and also it is not deniable that yet employees would be governed by the Service Rules and the Certified Standing Orders which were not amended. However, if we allow the plea of the appellant-Company then it would defeat the object of legislature because legislature could never have intended that employees would be condemned without giving them right of reasonable hearing. Naturally, every employee is under the expectation that before reducing his superannuation age, he would be given a proper chance to be heard. Right to work is a vital right of every employee and in our view, it shall not be taken away without giving reasonable opportunity of being heard otherwise it would be an act of violation of the Constitutional mandate.15. Moreover, the contention of the appellant-Company that the object of enhancement of superannuation age was just to save the industries from huge losses, therefore, it does not violate any statutory right of the employees, cannot be sustained in the eyes of law and also it does not give the license to the appellant-Company to act in contravention of law since it is a cannon of law that everyone is expected to act as per the mandate of law.16. To sum up, we are of the view that at the very moment when the order of enhancement of superannuation of the employees came into force though temporary in nature, it would amount to privilege to employees since it is a special right granted to them. Hence, any unilateral withdrawal of such privilege amounts to contravention of Section 9A of the Act and such act of the employer is bad in the eyes of law.17. In view of above detailed discussion, we are of the considered view that there is no error in the impugned judgment of the High Court, hence, we are not inclined to interfere in it.
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At the first sight of the provision, prima facie, it appears that the employer is bound to give minimum 21notice to the employee if employer intends to change any material terms of service. Section 9A of the Act is a provision in consonance with the Constitutional mandate which assures the protection of principles of natural justice i.e., no one shall be condemned unless heard. For the guidance, legislature prescribed the Fourth Schedule and it is clearly mentioned in Section 9A of the Act that before changing either of the things as envisaged in the Fourth Schedule, prior notice must be given to the employee. In the instant case,grievance of theTrade Union before the Tribunal was that withdrawal of the age of superannuation i.e., restoration of the age from 60 years to 58 years, amounts to contravention of Clause 8 of the Fourth Schedule, hence, employer was bound to give prior notice which employer cannot escape. Therefore, the action of the employer is bad in law and liable to be set aside which was eventually upheld by the Tribunal and the HighIt is admitted position that the Board of Directors took the decision of enhancement of age of retirement and it came into force with retrospective effect from 27.05.1998 as mentioned in the order dated 19.11.1998. Though, this decision implemented without the amendment in the Standing Orders and Rules, yet impliedly it got the force as a service condition since it directly relates with the service condition of the employees. Age of superannuation is an integral part of the service condition of the employee. Also, enhancement of superannuation age would impliedly amount to a privilege since it was provided particularly for the central public sectorNo doubt, the enhancement of the superannuation age was temporary in nature in order to achieve certain objectives and also it is not deniable that yet employees would be governed by the Service Rules and the Certified Standing Orders which were not amended. However, if we allow the plea of thethen it would defeat the object of legislature because legislature could never have intended that employees would be condemned without giving them right of reasonable hearing. Naturally, every employee is under the expectation that before reducing his superannuation age, he would be given a proper chance to be heard. Right to work is a vital right of every employee and in our view, it shall not be taken away without giving reasonable opportunity of being heard otherwise it would be an act of violation of the ConstitutionalMoreover, the contention of thethat the object of enhancement of superannuation age was just to save the industries from huge losses, therefore, it does not violate any statutory right of the employees, cannot be sustained in the eyes of law and also it does not give the license to theto act in contravention of law since it is a cannon of law that everyone is expected to act as per the mandate ofTo sum up, we are of the view that at the very moment when the order of enhancement of superannuation of the employees came into force though temporary in nature, it would amount to privilege to employees since it is a special right granted to them. Hence, any unilateral withdrawal of such privilege amounts to contravention of Section 9A of the Act and such act of the employer is bad in the eyes ofIn view of above detailed discussion, we are of the considered view that there is no error in the impugned judgment of the High Court, hence, we are not inclined to interfere in it.
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Vasudev Gopalkrishna Tamwekar Vs. The Board Of Liquidators Happyhome Co-Operative Housing So | the appellant was a tenant of the Society, and relief for possession of the premises was claimed on that footing, the arbitrators had no jurisdiction to grant relief for possession. But there is no warrant for the submission that the Society claimed before the arbitrators that the appellant was a tenant and on that basis claimed relief for possession. The pleadings before the arbitrators are not included in the record, and on a reasonable reading of the award also no such inference can be raised. Before the Committee of arbitrators the Society had alleged that the appellant had made persistent defaults in repayment of the loan due by him and had claimed a declaration that the appellant had ceased to be a member of the Society, and an order for delivery of vacant possession of the premises belonging to the Society. It was, it appears, not alleged that any relation of landlord and tenant had ever subsisted between the Society and the appellant, and the plea of the appellant that he was a tenant in respect of the premises in dispute could not affect the jurisdiction of the committee of arbitrators. No useful purpose will therefore be served by entering upon a discussion whether the provisions of Section 28 of Bombay Act 57 of 1947 override the provisions of the Bombay Cooperative Societies Act 7 of 1925, as was suggested at the Bar.10. Alternatively, it was contended that even if the Society claimed to obtain an order for possession on some footing other than the relationship of landlord and tenant, when the appellant raised the contention that he was a tenant and the relationship of landlord and tenant was put into issue, the Court of Small Causes, Bombay, alone was competent to decide that question. Section 28 of Bombay Act 57 of 1947 excludes the jurisdiction of all courts other than the Court of Small Causes to try any suit, proceeding or application between a landlord and a tenant and to deal with any claims or questions as are referred to in the section. Even if it be granted that an arbitrator appointed under the Bombay Cooperative Societies Act is a Court, - on this question we do not deem it necessary to express any opinion - in order that his jurisdiction be excluded the proceeding before him must be between landlord and tenant, and relating to the recovery of rent or possession of any premises to which the provisions of Part II of the Act apply. The exclusive jurisdiction of the Court of Small Causes arises only if the person invoking the jurisdiction of the Court alleges that the other party is a tenant or a landlord and the question is one which is referred to in S. 28. Where the person so invoking does not set up the claim that the other party is a tenant or a landlord the defendant is not entitled to displace the jurisdiction of the ordinary court by an allegation that he stands in that relation qua the other and on that ground the Court has no jurisdiction to try the suit or proceeding or an application. There is nothing in the judgment of this Court in Babulals Bhuramals Case AIR 1958 SC 677 which supports the view that by merely setting up a plea that he is a tenant in respect of the premises in dispute, the jurisdiction of the ordinary Courts to decide a suit, proceeding or application would be displaced. The facts which gave rise to the appeal decided by this Court in Babulals ease, AIR 1958 SC 677 may be noticed. The landlord flied in the Court of Small Causes a suit in ejectment against the tenant, after terminating the tenancy, and to that suit impleaded two persons who the landlord alleged had no right to be on the premises. The Court held that those two persons were not lawful sub-tenants and had no right to remain in the premises and passed a decree in ejectment against the three defendants. The three defendants then commenced an action in the Bombay City Court for a declaration that the first of them was a tenant of the landlord, and the other two were lawful sub-tenants and were entitled to the protection of Bombay Act 57 of 1947. The City Court held that it had jurisdiction to try the suit, but dismissed it on the merits. The High Court of Bombay confirmed the decree holding that the City Court had no jurisdiction to entertain the suit, but expressed no opinion on the merits. This Court affirmed the view of the High Court. The Court in that case was considering the true effect of S. 28 of Bombay Act 57 of 1947 in the light of the averments made by the plaintiffs who alleged that they were tenants and the denial by the defendant landlord of the tenancy set up. The Court observed on P. 681:"The suit did not cease to be a suit between a landlord and a tenant merely because the defendants denied the claim of the plaintiffs. Whether the plaintiffs were the tenants would be a claim or question arising out of the Act or any of its provisions which had to be dealt with by the Court trying the suit. On a proper interpretation of the provisions of S. 28 the suit contemplated in that section is not only a suit between a landlord and a tenant in which that relationship is admitted but also a suit in which it is claimed that the relationship of a landlord and a tenant within the meaning of the Act subsists between the parties."There is nothing in these observations to support the plea that the jurisdiction of the ordinary courts to try a suit or proceeding relating to recovery of possession of any premises to which Part II of the Act applies is displaced as soon as the contesting party raises a plea about the relationship of a landlord and a tenant. | 0[ds]In our opinion, the High Court is entirely correct in taking the view that that was a mere description, or misdescription, of the appellant and that, in law, the appellant could not claim that relationship of landlord and tenant had been created by virtue of the agreement, the terms of which have been referred to in some detail in order to bring out the weakness of the argument based upon the description of the appellant as tenant.It was argued in the High Court, though not in the Trial Court, that on the terms aforesaid of the agreement, a present demise of the land had been executed in favour of the appellant. This argument was thought of in the High Court. In the lower Court, the Appellants counsel relied on S. 27-A of the Specific Relief Act, and it was submitted that the defendant was entitled to defend his possession even though no lease had been executed and registered, as required by law. The argument that the appellant had become the tenant of the land in question under the Society was thought of because, in the agreement, he was referred to as the tenant.In our opinion, the High Court is entirely correct in taking the view that that was a mere description, or misdescription, of the appellant and that, in law, the appellant could not claim that relationship of landlord and tenant had been created by virtue of the agreement, the terms of which have been referred to in some detail in order to bring out the weakness of the argument based upon the description of the appellant as28 of Bombay Act 57 of 1947 excludes the jurisdiction of all courts other than the Court of Small Causes to try any suit, proceeding or application between a landlord and a tenant and to deal with any claims or questions as are referred to in the section. Even if it be granted that an arbitrator appointed under the Bombay Cooperative Societies Act is a Court, - on this question we do not deem it necessary to express any opinion - in order that his jurisdiction be excluded the proceeding before him must be between landlord and tenant, and relating to the recovery of rent or possession of any premises to which the provisions of Part II of the Act apply. The exclusive jurisdiction of the Court of Small Causes arises only if the person invoking the jurisdiction of the Court alleges that the other party is a tenant or a landlord and the question is one which is referred to in S. 28. Where the person so invoking does not set up the claim that the other party is a tenant or a landlord the defendant is not entitled to displace the jurisdiction of the ordinary court by an allegation that he stands in that relation qua the other and on that ground the Court has no jurisdiction to try the suit or proceeding or an application. There is nothing in the judgment of this Court in Babulals Bhuramals Case AIR 1958 SC 677 which supports the view that by merely setting up a plea that he is a tenant in respect of the premises in dispute, the jurisdiction of the ordinary Courts to decide a suit, proceeding or application would be displaced. The facts which gave rise to the appeal decided by this Court in Babulals ease, AIR 1958 SC 677 may be noticed. The landlord flied in the Court of Small Causes a suit in ejectment against the tenant, after terminating the tenancy, and to that suit impleaded two persons who the landlord alleged had no right to be on the premises. The Court held that those two persons were not lawful sub-tenants and had no right to remain in the premises and passed a decree in ejectment against the three defendants. The three defendants then commenced an action in the Bombay City Court for a declaration that the first of them was a tenant of the landlord, and the other two were lawful sub-tenants and were entitled to the protection of Bombay Act 57 of 1947. The City Court held that it had jurisdiction to try the suit, but dismissed it on the merits. The High Court of Bombay confirmed the decree holding that the City Court had no jurisdiction to entertain the suit, but expressed no opinion on the merits. This Court affirmed the view of the High Court. The Court in that case was considering the true effect of S. 28 of Bombay Act 57 of 1947 in the light of the averments made by the plaintiffs who alleged that they were tenants and the denial by the defendant landlord of the tenancy set up. The Court observed on P.suit did not cease to be a suit between a landlord and a tenant merely because the defendants denied the claim of the plaintiffs. Whether the plaintiffs were the tenants would be a claim or question arising out of the Act or any of its provisions which had to be dealt with by the Court trying the suit. On a proper interpretation of the provisions of S. 28 the suit contemplated in that section is not only a suit between a landlord and a tenant in which that relationship is admitted but also a suit in which it is claimed that the relationship of a landlord and a tenant within the meaning of the Act subsists between theis nothing in these observations to support the plea that the jurisdiction of the ordinary courts to try a suit or proceeding relating to recovery of possession of any premises to which Part II of the Act applies is displaced as soon as the contesting party raises a plea about the relationship of a landlord and a tenant. | 0 | 4,971 | 1,021 | ### Instruction:
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the appellant was a tenant of the Society, and relief for possession of the premises was claimed on that footing, the arbitrators had no jurisdiction to grant relief for possession. But there is no warrant for the submission that the Society claimed before the arbitrators that the appellant was a tenant and on that basis claimed relief for possession. The pleadings before the arbitrators are not included in the record, and on a reasonable reading of the award also no such inference can be raised. Before the Committee of arbitrators the Society had alleged that the appellant had made persistent defaults in repayment of the loan due by him and had claimed a declaration that the appellant had ceased to be a member of the Society, and an order for delivery of vacant possession of the premises belonging to the Society. It was, it appears, not alleged that any relation of landlord and tenant had ever subsisted between the Society and the appellant, and the plea of the appellant that he was a tenant in respect of the premises in dispute could not affect the jurisdiction of the committee of arbitrators. No useful purpose will therefore be served by entering upon a discussion whether the provisions of Section 28 of Bombay Act 57 of 1947 override the provisions of the Bombay Cooperative Societies Act 7 of 1925, as was suggested at the Bar.10. Alternatively, it was contended that even if the Society claimed to obtain an order for possession on some footing other than the relationship of landlord and tenant, when the appellant raised the contention that he was a tenant and the relationship of landlord and tenant was put into issue, the Court of Small Causes, Bombay, alone was competent to decide that question. Section 28 of Bombay Act 57 of 1947 excludes the jurisdiction of all courts other than the Court of Small Causes to try any suit, proceeding or application between a landlord and a tenant and to deal with any claims or questions as are referred to in the section. Even if it be granted that an arbitrator appointed under the Bombay Cooperative Societies Act is a Court, - on this question we do not deem it necessary to express any opinion - in order that his jurisdiction be excluded the proceeding before him must be between landlord and tenant, and relating to the recovery of rent or possession of any premises to which the provisions of Part II of the Act apply. The exclusive jurisdiction of the Court of Small Causes arises only if the person invoking the jurisdiction of the Court alleges that the other party is a tenant or a landlord and the question is one which is referred to in S. 28. Where the person so invoking does not set up the claim that the other party is a tenant or a landlord the defendant is not entitled to displace the jurisdiction of the ordinary court by an allegation that he stands in that relation qua the other and on that ground the Court has no jurisdiction to try the suit or proceeding or an application. There is nothing in the judgment of this Court in Babulals Bhuramals Case AIR 1958 SC 677 which supports the view that by merely setting up a plea that he is a tenant in respect of the premises in dispute, the jurisdiction of the ordinary Courts to decide a suit, proceeding or application would be displaced. The facts which gave rise to the appeal decided by this Court in Babulals ease, AIR 1958 SC 677 may be noticed. The landlord flied in the Court of Small Causes a suit in ejectment against the tenant, after terminating the tenancy, and to that suit impleaded two persons who the landlord alleged had no right to be on the premises. The Court held that those two persons were not lawful sub-tenants and had no right to remain in the premises and passed a decree in ejectment against the three defendants. The three defendants then commenced an action in the Bombay City Court for a declaration that the first of them was a tenant of the landlord, and the other two were lawful sub-tenants and were entitled to the protection of Bombay Act 57 of 1947. The City Court held that it had jurisdiction to try the suit, but dismissed it on the merits. The High Court of Bombay confirmed the decree holding that the City Court had no jurisdiction to entertain the suit, but expressed no opinion on the merits. This Court affirmed the view of the High Court. The Court in that case was considering the true effect of S. 28 of Bombay Act 57 of 1947 in the light of the averments made by the plaintiffs who alleged that they were tenants and the denial by the defendant landlord of the tenancy set up. The Court observed on P. 681:"The suit did not cease to be a suit between a landlord and a tenant merely because the defendants denied the claim of the plaintiffs. Whether the plaintiffs were the tenants would be a claim or question arising out of the Act or any of its provisions which had to be dealt with by the Court trying the suit. On a proper interpretation of the provisions of S. 28 the suit contemplated in that section is not only a suit between a landlord and a tenant in which that relationship is admitted but also a suit in which it is claimed that the relationship of a landlord and a tenant within the meaning of the Act subsists between the parties."There is nothing in these observations to support the plea that the jurisdiction of the ordinary courts to try a suit or proceeding relating to recovery of possession of any premises to which Part II of the Act applies is displaced as soon as the contesting party raises a plea about the relationship of a landlord and a tenant.
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In our opinion, the High Court is entirely correct in taking the view that that was a mere description, or misdescription, of the appellant and that, in law, the appellant could not claim that relationship of landlord and tenant had been created by virtue of the agreement, the terms of which have been referred to in some detail in order to bring out the weakness of the argument based upon the description of the appellant as tenant.It was argued in the High Court, though not in the Trial Court, that on the terms aforesaid of the agreement, a present demise of the land had been executed in favour of the appellant. This argument was thought of in the High Court. In the lower Court, the Appellants counsel relied on S. 27-A of the Specific Relief Act, and it was submitted that the defendant was entitled to defend his possession even though no lease had been executed and registered, as required by law. The argument that the appellant had become the tenant of the land in question under the Society was thought of because, in the agreement, he was referred to as the tenant.In our opinion, the High Court is entirely correct in taking the view that that was a mere description, or misdescription, of the appellant and that, in law, the appellant could not claim that relationship of landlord and tenant had been created by virtue of the agreement, the terms of which have been referred to in some detail in order to bring out the weakness of the argument based upon the description of the appellant as28 of Bombay Act 57 of 1947 excludes the jurisdiction of all courts other than the Court of Small Causes to try any suit, proceeding or application between a landlord and a tenant and to deal with any claims or questions as are referred to in the section. Even if it be granted that an arbitrator appointed under the Bombay Cooperative Societies Act is a Court, - on this question we do not deem it necessary to express any opinion - in order that his jurisdiction be excluded the proceeding before him must be between landlord and tenant, and relating to the recovery of rent or possession of any premises to which the provisions of Part II of the Act apply. The exclusive jurisdiction of the Court of Small Causes arises only if the person invoking the jurisdiction of the Court alleges that the other party is a tenant or a landlord and the question is one which is referred to in S. 28. Where the person so invoking does not set up the claim that the other party is a tenant or a landlord the defendant is not entitled to displace the jurisdiction of the ordinary court by an allegation that he stands in that relation qua the other and on that ground the Court has no jurisdiction to try the suit or proceeding or an application. There is nothing in the judgment of this Court in Babulals Bhuramals Case AIR 1958 SC 677 which supports the view that by merely setting up a plea that he is a tenant in respect of the premises in dispute, the jurisdiction of the ordinary Courts to decide a suit, proceeding or application would be displaced. The facts which gave rise to the appeal decided by this Court in Babulals ease, AIR 1958 SC 677 may be noticed. The landlord flied in the Court of Small Causes a suit in ejectment against the tenant, after terminating the tenancy, and to that suit impleaded two persons who the landlord alleged had no right to be on the premises. The Court held that those two persons were not lawful sub-tenants and had no right to remain in the premises and passed a decree in ejectment against the three defendants. The three defendants then commenced an action in the Bombay City Court for a declaration that the first of them was a tenant of the landlord, and the other two were lawful sub-tenants and were entitled to the protection of Bombay Act 57 of 1947. The City Court held that it had jurisdiction to try the suit, but dismissed it on the merits. The High Court of Bombay confirmed the decree holding that the City Court had no jurisdiction to entertain the suit, but expressed no opinion on the merits. This Court affirmed the view of the High Court. The Court in that case was considering the true effect of S. 28 of Bombay Act 57 of 1947 in the light of the averments made by the plaintiffs who alleged that they were tenants and the denial by the defendant landlord of the tenancy set up. The Court observed on P.suit did not cease to be a suit between a landlord and a tenant merely because the defendants denied the claim of the plaintiffs. Whether the plaintiffs were the tenants would be a claim or question arising out of the Act or any of its provisions which had to be dealt with by the Court trying the suit. On a proper interpretation of the provisions of S. 28 the suit contemplated in that section is not only a suit between a landlord and a tenant in which that relationship is admitted but also a suit in which it is claimed that the relationship of a landlord and a tenant within the meaning of the Act subsists between theis nothing in these observations to support the plea that the jurisdiction of the ordinary courts to try a suit or proceeding relating to recovery of possession of any premises to which Part II of the Act applies is displaced as soon as the contesting party raises a plea about the relationship of a landlord and a tenant.
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Manubhai Nandlal Amorsey Vs. Popatlal Manilal Joshi and Ors | sufficient if the particulars are ordered to be furnished within a reasonable time before the commencement of the trial."Section 83 (3) has been repealed and is now replaced by section 86 (5) which forbids any amendment introducing particulars of a corrupt practice not previously alleged in the petition. Assuming that the amendment of March 7, 1967, was permissible under section 86 (5) the question is whether the High Court rightly allowed it.Normally an application for amendment under Section 86 (5) should be made within a reasonable time before the commencement of the trial. The Court has power to allow in amendment even after the commencement of the trial, but as a rule leave to amend at a late stage should be given in exceptional cases where the petitioner could not with reasonable diligence have discovered the new facts earlier. Leave to amend will not be given if the petitioner is not acting in good faith or has kept back the facts known to him before the trial started.6. According to respondent No. 1 Shambhu Maharaj committed corrupt practice it election meetings held at Ikbalgadh where P. W. 9 was present, Amirgadh where P. W. 4 was present and at Wav where one Chotaji Bhattji was present and that he came to know of the corrupt practices from those persons. All the meetings are referred to in the election petition. If shambhu Maharaj had told the electors that Sri Shankracharya had commanded them not to vote for the Congress candidate had that disobedience of his command would be sinful, P. W. 4 and Chotaji Bhattji must have informed respondent No. 1 of this corrupt practice before April 10, 1967 when the election petition was filed. No explanation is given as to why respondent No.1 withheld this information in the petition. Respondent No. 1 now says that on April 7, 1967 he applied for certified copies of the reports of C. B. Barot to the Deputy Inspector General of Police, C. I. D., Ahmedabad but the application was rejected on May 14, 1967. Assuming that he could not get certified copies of the reports, he could set forth in the petition the substance of the charge with regard to the command of Sri Shankracharya from the information supplied by his informants. He knew of the reports of C. B. Barot before April 17, 1967. Immediately after filing the election petition he could subpoena the reports and under orders of the Court he could inspect them long before the trial started. He was aware that the charge of telling the electors that they would commit the sin of go-hatya was quite different from the charge of telling them that they would commit the sin of Brahma-hatya or the sin of disobeying the command of their religious leader Sri Shankracharya. On September 25, 1967, he obtained an order giving him leave to amend the petition by adding the charge with regard to the sins of Brahma-hatya and Sadhu-hatya, but he deliberately refrained from adding the charge with regard to the sin of disobeying the command of Sri Shankracharya. The trial commenced on February 29, 1968. On that date P. W. 4 said that at the Amirgadh meeting Shambhu Maharaj told the electors that he had brought a mandate from Jagadguru Shankracharya. On an objection being raised by the appellants counsel Mr. Mehta, counsel for respondent No. 1, agreed that the statement of P. W. 4 would not be treated as part of the evidence on the record. Thereafter the trial proceeded and 11 more witnesses were examined on the footing that respondent No. 1 would not rely on the charge with regard to the command of Jagadguru Shankracharya. On that footing the appellants counsel adopted a definite line of cross-examination. On March 4, he consented to the marking of the full reports of the speeches of Shambhu Maharaj as exhibits and on March 5, he extracted an admission from Barot that the witness had taken verbatim notes of the speeches of Shambhu Maharaj. Counsel adopted this line of cross-examination because he took the stand that the speeches did not prove the corrupt practice alleged in the petition. The application for amendment was filed on March 5 and was allowed on March 7.The order allowing the amendment has resulted in manifest injustice to the appellant. His counsel could not thereafter take the stand that the reports had been fabricated at the instance of the Congress Party. Respondent No. 1 moved the application for amendment in bad faith at a very late stage of the trial. He deliberately refrained from taking the new charge earlier.7. Under Section 116A an appeal lies to this Court on any question whether of law or fact from the order of the High Court. The procedure in appeal is regulated by Section 116C. All the provisions of the Code of Civil Procedure including Section 105 apply to the appeal, and any error in an order of the trial Court affecting the decision of the case may be taken as a ground of objection in the appeal.In an appeal under Section 116A the whole case is within the jurisdiction of this Court. Normally the Court does not interfere with the Judges discretion in granting amendments except on grounds of law but where, as in this case, the order has resulted in manifest injustice, the order Court has the power and the duty to correct the error. In Evans v. Bartlam, 1937 AC 473 at pp. 480-481, Lord Atkin observed:-"Appellate jurisdiction is always statutory: there is in the statute no restriction upon the jurisdiction of the Court of Appeal: and while the appellate court in the exercise of its appellate power is no doubt entirely justified in saying that normally it will not interfere with the exercise of the Judges discretion except on grounds of law, yet if it sees that on other grounds the decision will result in injustice being done it has both the power and the duty to remedy it."We, | 1[ds]6. According to respondent No. 1 Shambhu Maharaj committed corrupt practice it election meetings held at Ikbalgadh where P. W. 9 was present, Amirgadh where P. W. 4 was present and at Wav where one Chotaji Bhattji was present and that he came to know of the corrupt practices from those persons. All the meetings are referred to in the election petition. If shambhu Maharaj had told the electors that Sri Shankracharya had commanded them not to vote for the Congress candidate had that disobedience of his command would be sinful, P. W. 4 and Chotaji Bhattji must have informed respondent No. 1 of this corrupt practice before April 10, 1967 when the election petition was filed. No explanation is given as to why respondent No.1 withheld this information in the petition. Respondent No. 1 now says that on April 7, 1967 he applied for certified copies of the reports of C. B. Barot to the Deputy Inspector General of Police, C. I. D., Ahmedabad but the application was rejected on May 14, 1967. Assuming that he could not get certified copies of the reports, he could set forth in the petition the substance of the charge with regard to the command of Sri Shankracharya from the information supplied by his informants. He knew of the reports of C. B. Barot before April 17, 1967. Immediately after filing the election petition he could subpoena the reports and under orders of the Court he could inspect them long before the trial started. He was aware that the charge of telling the electors that they would commit the sin ofwas quite different from the charge of telling them that they would commit the sin ofor the sin of disobeying the command of their religious leader Sri Shankracharya. On September 25, 1967, he obtained an order giving him leave to amend the petition by adding the charge with regard to the sins ofa, but he deliberately refrained from adding the charge with regard to the sin of disobeying the command of Sri Shankracharya. The trial commenced on February 29, 1968. On that date P. W. 4 said that at the Amirgadh meeting Shambhu Maharaj told the electors that he had brought a mandate from Jagadguru Shankracharya. On an objection being raised by the appellants counsel Mr. Mehta, counsel for respondent No. 1, agreed that the statement of P. W. 4 would not be treated as part of the evidence on the record. Thereafter the trial proceeded and 11 more witnesses were examined on the footing that respondent No. 1 would not rely on the charge with regard to the command of Jagadguru Shankracharya. On that footing the appellants counsel adopted a definite line ofOn March 4, he consented to the marking of the full reports of the speeches of Shambhu Maharaj as exhibits and on March 5, he extracted an admission from Barot that the witness had taken verbatim notes of the speeches of Shambhu Maharaj. Counsel adopted this line ofbecause he took the stand that the speeches did not prove the corrupt practice alleged in the petition. The application for amendment was filed on March 5 and was allowed on March 7.The order allowing the amendment has resulted in manifest injustice to the appellant. His counsel could not thereafter take the stand that the reports had been fabricated at the instance of the Congress Party. Respondent No. 1 moved the application for amendment in bad faith at a very late stage of the trial. He deliberately refrained from taking the new charge earlier.In considering the speeches the status of the speaker and the character of the audience are relevant considerations. Shambhu Maharaj was Kirtankar of repute and well known and respected for his lectures on Hindu religion.The audience consisted mostly of illiterate and orthodox Hindus of the rural areas, Adivasis and Rabaris belonging to the Scheduled Tribes and Scheduled Castes. In this background, let us now consider the speeches. Respondent No. 1 charges corrupt practice in respect of 4 passages in the Ikbalgadh speech (Ex.3 passages in the Wav speech (Ex.and 3 passages in the Amirgadh speech (Ex.The learned trial Judge found that the corrupt practice was not committed by the 1st and 2nd passage in Ex.the 1st, 2nd and 3rd and 6th passages in (Ex.But the learned Judge held that 3rd and 4th passages in Ex.and the 4th and 5 th passages in Ex.amounted to corrupt practice as the electors were told that Sri Shankracharya had commanded them not to vote for the Congress and that if they disobeyed his command they would incur divine displeasure and spiritual censure. We have disallowed the amendment introducing this charge and we must therefore set aside the finding of the learned Judge with regard to those passages. We find that the passages do not show any corrupt practice as alleged in the petition.11. In the 2nd passage in the Amirgadh speech (Ex.the speaker referred to the ban on cow slaughter in Pakisthan, Afganisthan and Madhya Pradesh and said that the Swatantra Party had promised to ban slaughter of cow progeny and exemption of land revenue. He also said:"Sun rises andthousand cows are slaughtered ................... In Ahmedabad there is a prohibition on cow slaughter but the slaughtering of calf and ox is continued. The earth took the form of a cow and if the said "Gaumata" or ox is slaughtered how can earth be satisfied and so long as the earth is not satisfied how can there be fertility in the earth".In the third passage (Ex.;In the year 1942, sixteen lacs and in 1946lacs and in 1947 after India became separate and at present about 1 crore cows are slaughtered. You say whether to vote for Congress is to become partner in sin or anything else. If you givefor good cause you may get good fruit and if youin committing a sin you become a partner of sin. Why you become a partner of sin by giving votes tothen referred to the command of Sri Shankracharya that the electors should not vote for the Congress Party. But even apart from the command of Sri Shankracharya the electors are distinctly told that though there was a ban on cow slaughter in Ahmedabad, the Congress was permitting the slaughter of crores of cows elsewhere in India and was committing the sin ofand those who vote for the Congress would be partners in the sin. The dominant theme of the speech was that those who commit the sin of gohatya would be visited with divine displeasure. Having regard to the character of the audience, the speech was calculated to interfere with the free exercise of electoral right.Accordingly, the offending passages in the Amirgadh speech fell within Section 123 (2), Proviso (a) (ii). We are satisfied that Shambhu Maharaj spoke at the Amirgadh meeting with the consent of Punambhai, the election agent of the appellant.Punambhai was present at the Amirgadh meeting. He addressed the meeting before Shambhu Maharaj spoke. Shambhu Mabaraj addressed several other election meetings of the Swatantra Party. Punambhai issued a pamphlet calling one of the meetings. P. W. 10 proved that he was asked by Punambhai to call Shambhu Maharaj for addressing another meeting as the voters were uneducated and had deep belief in religion. Punambhai accompanied Shambhu Maharaj from one place to another. On February 8, 1967 he went with Shambhu Maharaj to the meeting at Ikbalgadh and thereafter went to Amirgadh. On February 9, he went with Shambhu Maharaj to the meeting at Wav. The offending passages of the speech at the Amirgadh meeting are integral parts of the dominant theme of the sin of cow slaughter. They cannot be regarded as stray words spoken by Shambhu Maharaj without Punambhais consent. Punambhaj did not raise any objection to the impugned speeches at the meeting. He gave evidence in Court but did not say that he was not a consenting party to the offending passages. We hold that the corrupt practice under Section 123 (2), Proviso (a) (ii) was committed at the Amirgadh meeting on February 8, 1967 with the consent of the election agent of the appellant.have had the advantage of reading the judgment just now read out by Bachawat, J. I agree that the appeal should be dismissed. But I am unable to agree that the amendment complained of was not properly allowed. The learned trial Judge has given good reasons in support of his order. In my opinion no case is made out to interfere with that order. I am also of the opinion that each and every one of the speeches made by Shambhu Maharaj which are theof this appeal, read as a whole as we should do, fall within the vice of Proviso (a) (ii) of Section 123 (2) of the Representation of the People Act, 1951. Nothing so bad as those speeches I have come across in election cases. They are fanatical outpourings and a direct challenge to the concept of a secular democracy. | 1 | 2,429 | 1,630 | ### 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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sufficient if the particulars are ordered to be furnished within a reasonable time before the commencement of the trial."Section 83 (3) has been repealed and is now replaced by section 86 (5) which forbids any amendment introducing particulars of a corrupt practice not previously alleged in the petition. Assuming that the amendment of March 7, 1967, was permissible under section 86 (5) the question is whether the High Court rightly allowed it.Normally an application for amendment under Section 86 (5) should be made within a reasonable time before the commencement of the trial. The Court has power to allow in amendment even after the commencement of the trial, but as a rule leave to amend at a late stage should be given in exceptional cases where the petitioner could not with reasonable diligence have discovered the new facts earlier. Leave to amend will not be given if the petitioner is not acting in good faith or has kept back the facts known to him before the trial started.6. According to respondent No. 1 Shambhu Maharaj committed corrupt practice it election meetings held at Ikbalgadh where P. W. 9 was present, Amirgadh where P. W. 4 was present and at Wav where one Chotaji Bhattji was present and that he came to know of the corrupt practices from those persons. All the meetings are referred to in the election petition. If shambhu Maharaj had told the electors that Sri Shankracharya had commanded them not to vote for the Congress candidate had that disobedience of his command would be sinful, P. W. 4 and Chotaji Bhattji must have informed respondent No. 1 of this corrupt practice before April 10, 1967 when the election petition was filed. No explanation is given as to why respondent No.1 withheld this information in the petition. Respondent No. 1 now says that on April 7, 1967 he applied for certified copies of the reports of C. B. Barot to the Deputy Inspector General of Police, C. I. D., Ahmedabad but the application was rejected on May 14, 1967. Assuming that he could not get certified copies of the reports, he could set forth in the petition the substance of the charge with regard to the command of Sri Shankracharya from the information supplied by his informants. He knew of the reports of C. B. Barot before April 17, 1967. Immediately after filing the election petition he could subpoena the reports and under orders of the Court he could inspect them long before the trial started. He was aware that the charge of telling the electors that they would commit the sin of go-hatya was quite different from the charge of telling them that they would commit the sin of Brahma-hatya or the sin of disobeying the command of their religious leader Sri Shankracharya. On September 25, 1967, he obtained an order giving him leave to amend the petition by adding the charge with regard to the sins of Brahma-hatya and Sadhu-hatya, but he deliberately refrained from adding the charge with regard to the sin of disobeying the command of Sri Shankracharya. The trial commenced on February 29, 1968. On that date P. W. 4 said that at the Amirgadh meeting Shambhu Maharaj told the electors that he had brought a mandate from Jagadguru Shankracharya. On an objection being raised by the appellants counsel Mr. Mehta, counsel for respondent No. 1, agreed that the statement of P. W. 4 would not be treated as part of the evidence on the record. Thereafter the trial proceeded and 11 more witnesses were examined on the footing that respondent No. 1 would not rely on the charge with regard to the command of Jagadguru Shankracharya. On that footing the appellants counsel adopted a definite line of cross-examination. On March 4, he consented to the marking of the full reports of the speeches of Shambhu Maharaj as exhibits and on March 5, he extracted an admission from Barot that the witness had taken verbatim notes of the speeches of Shambhu Maharaj. Counsel adopted this line of cross-examination because he took the stand that the speeches did not prove the corrupt practice alleged in the petition. The application for amendment was filed on March 5 and was allowed on March 7.The order allowing the amendment has resulted in manifest injustice to the appellant. His counsel could not thereafter take the stand that the reports had been fabricated at the instance of the Congress Party. Respondent No. 1 moved the application for amendment in bad faith at a very late stage of the trial. He deliberately refrained from taking the new charge earlier.7. Under Section 116A an appeal lies to this Court on any question whether of law or fact from the order of the High Court. The procedure in appeal is regulated by Section 116C. All the provisions of the Code of Civil Procedure including Section 105 apply to the appeal, and any error in an order of the trial Court affecting the decision of the case may be taken as a ground of objection in the appeal.In an appeal under Section 116A the whole case is within the jurisdiction of this Court. Normally the Court does not interfere with the Judges discretion in granting amendments except on grounds of law but where, as in this case, the order has resulted in manifest injustice, the order Court has the power and the duty to correct the error. In Evans v. Bartlam, 1937 AC 473 at pp. 480-481, Lord Atkin observed:-"Appellate jurisdiction is always statutory: there is in the statute no restriction upon the jurisdiction of the Court of Appeal: and while the appellate court in the exercise of its appellate power is no doubt entirely justified in saying that normally it will not interfere with the exercise of the Judges discretion except on grounds of law, yet if it sees that on other grounds the decision will result in injustice being done it has both the power and the duty to remedy it."We,
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this line ofbecause he took the stand that the speeches did not prove the corrupt practice alleged in the petition. The application for amendment was filed on March 5 and was allowed on March 7.The order allowing the amendment has resulted in manifest injustice to the appellant. His counsel could not thereafter take the stand that the reports had been fabricated at the instance of the Congress Party. Respondent No. 1 moved the application for amendment in bad faith at a very late stage of the trial. He deliberately refrained from taking the new charge earlier.In considering the speeches the status of the speaker and the character of the audience are relevant considerations. Shambhu Maharaj was Kirtankar of repute and well known and respected for his lectures on Hindu religion.The audience consisted mostly of illiterate and orthodox Hindus of the rural areas, Adivasis and Rabaris belonging to the Scheduled Tribes and Scheduled Castes. In this background, let us now consider the speeches. Respondent No. 1 charges corrupt practice in respect of 4 passages in the Ikbalgadh speech (Ex.3 passages in the Wav speech (Ex.and 3 passages in the Amirgadh speech (Ex.The learned trial Judge found that the corrupt practice was not committed by the 1st and 2nd passage in Ex.the 1st, 2nd and 3rd and 6th passages in (Ex.But the learned Judge held that 3rd and 4th passages in Ex.and the 4th and 5 th passages in Ex.amounted to corrupt practice as the electors were told that Sri Shankracharya had commanded them not to vote for the Congress and that if they disobeyed his command they would incur divine displeasure and spiritual censure. We have disallowed the amendment introducing this charge and we must therefore set aside the finding of the learned Judge with regard to those passages. We find that the passages do not show any corrupt practice as alleged in the petition.11. In the 2nd passage in the Amirgadh speech (Ex.the speaker referred to the ban on cow slaughter in Pakisthan, Afganisthan and Madhya Pradesh and said that the Swatantra Party had promised to ban slaughter of cow progeny and exemption of land revenue. He also said:"Sun rises andthousand cows are slaughtered ................... In Ahmedabad there is a prohibition on cow slaughter but the slaughtering of calf and ox is continued. The earth took the form of a cow and if the said "Gaumata" or ox is slaughtered how can earth be satisfied and so long as the earth is not satisfied how can there be fertility in the earth".In the third passage (Ex.;In the year 1942, sixteen lacs and in 1946lacs and in 1947 after India became separate and at present about 1 crore cows are slaughtered. You say whether to vote for Congress is to become partner in sin or anything else. If you givefor good cause you may get good fruit and if youin committing a sin you become a partner of sin. Why you become a partner of sin by giving votes tothen referred to the command of Sri Shankracharya that the electors should not vote for the Congress Party. But even apart from the command of Sri Shankracharya the electors are distinctly told that though there was a ban on cow slaughter in Ahmedabad, the Congress was permitting the slaughter of crores of cows elsewhere in India and was committing the sin ofand those who vote for the Congress would be partners in the sin. The dominant theme of the speech was that those who commit the sin of gohatya would be visited with divine displeasure. Having regard to the character of the audience, the speech was calculated to interfere with the free exercise of electoral right.Accordingly, the offending passages in the Amirgadh speech fell within Section 123 (2), Proviso (a) (ii). We are satisfied that Shambhu Maharaj spoke at the Amirgadh meeting with the consent of Punambhai, the election agent of the appellant.Punambhai was present at the Amirgadh meeting. He addressed the meeting before Shambhu Maharaj spoke. Shambhu Mabaraj addressed several other election meetings of the Swatantra Party. Punambhai issued a pamphlet calling one of the meetings. P. W. 10 proved that he was asked by Punambhai to call Shambhu Maharaj for addressing another meeting as the voters were uneducated and had deep belief in religion. Punambhai accompanied Shambhu Maharaj from one place to another. On February 8, 1967 he went with Shambhu Maharaj to the meeting at Ikbalgadh and thereafter went to Amirgadh. On February 9, he went with Shambhu Maharaj to the meeting at Wav. The offending passages of the speech at the Amirgadh meeting are integral parts of the dominant theme of the sin of cow slaughter. They cannot be regarded as stray words spoken by Shambhu Maharaj without Punambhais consent. Punambhaj did not raise any objection to the impugned speeches at the meeting. He gave evidence in Court but did not say that he was not a consenting party to the offending passages. We hold that the corrupt practice under Section 123 (2), Proviso (a) (ii) was committed at the Amirgadh meeting on February 8, 1967 with the consent of the election agent of the appellant.have had the advantage of reading the judgment just now read out by Bachawat, J. I agree that the appeal should be dismissed. But I am unable to agree that the amendment complained of was not properly allowed. The learned trial Judge has given good reasons in support of his order. In my opinion no case is made out to interfere with that order. I am also of the opinion that each and every one of the speeches made by Shambhu Maharaj which are theof this appeal, read as a whole as we should do, fall within the vice of Proviso (a) (ii) of Section 123 (2) of the Representation of the People Act, 1951. Nothing so bad as those speeches I have come across in election cases. They are fanatical outpourings and a direct challenge to the concept of a secular democracy.
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Meeta Sahai Vs. State of Bihar and Ors | the system and cause interpretative chaos which would undermine the fair and just right to compete for public employment. 27. Further, if faced between a choice in which only a few people would be eligible versus a fairly large group, we feel that the latter ought to be adopted to have a diverse pool of applicants. This would promote merit, bring better doctors and further the Constitutional scheme of providing equal opportunity in public employment to the masses. We are thus of the view that the provisions of the Rules in the case¬at¬hand cannot be construed or explained by applying the principle of literal interpretation. Purposive Interpretation 28. In pursuance to the above analysis, we are of the view that it is necessary to resort to purposive interpretation of the provisions of the Rules, in light of its objectives. Otherwise also as per the prefatory part of Article 309, the Rules framed thereunder must be in conformity with all other Constitutional provisions, which necessarily includes Part III. Dealing with recruitment in Government hospitals, it is clear that the object and purpose of the Rules too must satisfy the test of Article 16. 29. Further, given the absence of express definition of Government hospitals under the Rules which is the central stage of this debate, we deem it fit to make use of Constitutional values as a tool of statutory interpretation. It is well known the Constitution must not only be seen as a benchmark for testing the validity of legislations, but also as an inspirational document to guide State action. When there are two plausible interpretations, the one which promotes Constitutional values must be preferred. 30. Under our constitutional scheme, obligations and duties of the State have eloquently been divided using a three¬tier system of governance. The Union of India at the national level, individual State Governments at the State Level and various Municipalities/Panchayats at the local level, parallelly discharge their respective Constitutional duties for the welfare of the general public. 31. In deference to their duties to raise the standard of living, ensure adequate nutrition and public health of its people under Article 47 of the Constitution, both the Central as well as the State Governments formulate various welfare schemes and establish institutions including hospitals/primary health centres. Still further, under Article 243G read with Entry 23 of Schedule XI of the Constitution, the legislature of the State can entrust the functions of Health and sanitation, including hospitals, primary health centres and dispensaries to the Panchayati Raj Institutions. Similarly, the State legislature may entrust under Article 243W read with Entry 6 of Schedule XII, the functions of Public health, sanitation conservancy and solid waste management to Municipalities. Hospitals of these local governments are often run on the back of funds derived from the Consolidated Fund of the States. It may thus be seen that the Constitution envisages the setting up of hospitals by many different public authorities, including the Central Government, State Government, Municipalities and Panchayati Raj Institutions. 32. In addition, it is a well¬known fact that several hospitals throughout the country have been set up by instrumentalities of the Central or State Governments, more notably the Employees State Insurance Corporation Hospitals, to cater to the need of poor and needy persons. These hospitals, therefore, are at par with other government hospitals for all intents and purposes, and the experience gained by a doctor in such hospitals subsume the characteristics acquired in a hospital set up by the Bihar Government. 33. Other hospitals are also established by instrumentalities of the States and the Centre in pursuance of Constitutional obligations under Part IV. These although not strictly covered within the ambit of the Rules as propounded by the respondents, nevertheless serve the same purpose of providing best medical facilities to public at large. An apt example is of Army hospitals, and there is little reason to ignore and overlook the experience gained in such hospitals. 34. It is hence irrational to urge that the work experience in any such hospital is different from that in a Government of Bihar hospital. Hence, it would be Constitutionally unjust to allow differentiation between the experience gained by doctors at these hospitals established by Panchayats or Municipalities or by the Central Government and its instrumentalities in the territory of Bihar vis¬à¬vis those run by the Bihar Government. Any attempt to discriminate between hospitals run by the State Government and the Central Government or Municipalities/Panchayati Raj Institutions is bound to hit the very ethos of our Constitutional governance setup. 35. Having said so, we are not oblivious to the fact that equality does not imply that there can be no classification. Instead, sometimes it may be necessary to treat unequals unequally, for equal treatment of persons with unequal circumstances creates an unjust situation.Indira Sawhney v. Union of India 1992 Supp. (3) SCC 217 ¶ 415.Such classification, however, must not be arbitrary but rationally founded on some quality or characteristics which are identifiable within the class of people so created and absent in those excluded from such classification 36. We are of the view that the purpose behind formulation of the Rules was to recognize the unique challenges of hospitals in Bihar and incentivise doctors to work in non-private hospitals. There is some substance in the submission of learned counsel for the respondents that Bihar is predominantly poor and thus requires doctors having exposure to such challenging environment as compared to their counterparts in private hospitals. Experience in a non¬private hospital instills sensitivity in its doctors, making them more adept to understand the ail and agony of poor patients. Such experience will undoubtedly be useful in furthering the object of Government hospitals and must be given due weightage while selecting suitable candidates. Interpreting Government hospitals to include only a small class of persons who have worked under the Government of Bihar, is thus clearly erroneous and anti¬merit. Such an objective would not be defeated by the understanding of the Rules as has been construed by us. CONCLUSION | 1[ds]The underlying objective of this principle is to prevent candidates from trying another shot at consideration, and to avoid an impasse wherein every disgruntled candidate, having failed the selection, challenges it in the hope of getting a second chance18. However, we must differentiate from this principle insofar as the candidate by agreeing to participate in the selection process only accepts the prescribed procedure and not the illegality in it. In a situation where a candidate alleges misconstruction of statutory rules and discriminating consequences arising therefrom, the same cannot be condoned merely because a candidate has partaken in it. The constitutional scheme is sacrosanct and its violation in any manner is impermissible. In fact, a candidate may not have locus to assail the incurable illegality or derogation of the provisions of the Constitution, unless he/she participates in the selection process19. The question of permissibility of giving weightage for work experience in government hospitals is also not the bone of contention in this case. Medicine being an applied science cannot be mastered by mere academic knowledge. Longer experience of a candidate adds to his knowledge and expertise. Similarly, government hospitals differ from private hospitals vastly for the former have unique infrastructural constraints and deal with poor masses. Doctors in such non¬private hospitals serve a public purpose by giving medical treatment to swarms of patients, in return for a meagre salary. Hence, when placing emphasis on the requirement of work experience, there is no dispute on such recognition of government hospitals and private hospitals as distinct classes. Instead such recognition ensures that the doctors recruited in notso-rich states like Bihar have the requisite exposure to challenges faced in those regions20. The appellant has thus rightly not challenged the selection procedure but has narrowed her claim to only against the respondents interpretation of work experience as part of merit determination. Since interpretation of a statute or rule is the exclusive domain of Courts, and given the scope of judicial review in delineating such criteria, the appellants challenge cannot be turned down at the threshold. However, we are not commenting specifically on the merit of appellants case, and our determination is alien to the outcome of the selection process. It is possible post what is held hereinafter that she be selected, or not21. It is a settled cannon of statutory interpretation that as a first step, the Courts ought to interpret the text of the provision and construct it literally. Provisions in a statute must be read in their original grammatical meaning to give its words a common textual meaning. However, this tool of interpretation can only be applied in cases where the text of the enactment is susceptible to only one meaningDevi Gupta,(2005) 2 SCC 271 & para;13. Nevertheless, in a situation where there is ambiguity in the meaning of the text, the Courts must also give due regard to the consequences of the interpretation taken24. At the outset, the respondents contention that meaning of the term Government hospital would be bound by the restrictive definition of Government under Rule 2(a) of the Rules, does not sound well. It is settled that grammatical rules must be given due weightage during statutory interpretation. ( Navinchandra Mafatlal v. CIT, (1955) 1 SCR 829 & para;6.) Rule 2 is a definitional provision and defines Government as a noun. However, it would not necessarily govern instances where the word has been used in another form. (See FCC v. AT&T Inc. 562 U.S. 397 (2011); where the Supreme Court of the United States held that definition of person as a noun would not be applicable to its use as an adjective.)Under Rule 5, the operative phrase is any Government hospital. Here, Government is restrictively defining the noun hospital to exclude those run by certain entities. Thus, Government as part of Government hospital is a noun adjunct and has been used as an adjective. Such usage of a noun in its adjectival form changes its character altogether and it would be unwise to import the meaning of its noun form. This is especially true considering how the prefatory portion of Rule 2 explicitly provides that the definitions as prescribed thereunder shall be referred to unless otherwise required in context. The phrase Government hospital therefore cannot be construed to exclude other non-private hospitals which are otherwise run exclusively with the aid and assistance of the Governments. Additionally given the difference in common usage wherein government hospital refers to all non-private hospitals and not hospitals established by a particular government, Rule 5 & 6(iii) would not be bound by Rule 2(a)26. In addition to this, adopting the respondents interpretation would increase uncertainty and create practical difficulties. When Rule 2(a) is applied to Government hospital there is substantial ambiguity created as to whether or not hospitals run by instrumentalities of the Government, which are not strictly owned by the Government of Bihar would be included within Rule 5. When a pointed question was put forth to learned counsel for the respondents as to whether a hospital established by the municipality or one run by an institute substantially funded by State money would be included in their definition, no clear answer was forthcoming. Such issues are bound to arise repeatedly in any selection process. Given how there is no simple answer to such questions, the rigid interpretation adopted by the Government would only lead to friction in the system and cause interpretative chaos which would undermine the fair and just right to compete for public employment27. Further, if faced between a choice in which only a few people would be eligible versus a fairly large group, we feel that the latter ought to be adopted to have a diverse pool of applicants. This would promote merit, bring better doctors and further the Constitutional scheme of providing equal opportunity in public employment to the masses. We are thus of the view that the provisions of the Rules in the case¬at¬hand cannot be construed or explained by applying the principle of literal interpretation28. In pursuance to the above analysis, we are of the view that it is necessary to resort to purposive interpretation of the provisions of the Rules, in light of its objectives. Otherwise also as per the prefatory part of Article 309, the Rules framed thereunder must be in conformity with all other Constitutional provisions, which necessarily includes Part III. Dealing with recruitment in Government hospitals, it is clear that the object and purpose of the Rules too must satisfy the test of Article 1634. It is hence irrational to urge that the work experience in any such hospital is different from that in a Government of Bihar hospital. Hence, it would be Constitutionally unjust to allow differentiation between the experience gained by doctors at these hospitals established by Panchayats or Municipalities or by the Central Government and its instrumentalities in the territory of Bihar vis¬à¬vis those run by the Bihar Government. Any attempt to discriminate between hospitals run by the State Government and the Central Government or Municipalities/Panchayati Raj Institutions is bound to hit the very ethos of our Constitutional governance setup35. Having said so, we are not oblivious to the fact that equality does not imply that there can be no classification. Instead, sometimes it may be necessary to treat unequals unequally, for equal treatment of persons with unequal circumstances creates an unjust situation.Indira Sawhney v. Union of India 1992 Supp. (3) SCC 217 ¶ 415.Such classification, however, must not be arbitrary but rationally founded on some quality or characteristics which are identifiable within the class of people so created and absent in those excluded from such classification36. We are of the view that the purpose behind formulation of the Rules was to recognize the unique challenges of hospitals in Bihar and incentivise doctors to work in non-private hospitals. There is some substance in the submission of learned counsel for the respondents that Bihar is predominantly poor and thus requires doctors having exposure to such challenging environment as compared to their counterparts in private hospitals. Experience in a non¬private hospital instills sensitivity in its doctors, making them more adept to understand the ail and agony of poor patients. Such experience will undoubtedly be useful in furthering the object of Government hospitals and must be given due weightage while selecting suitable candidates. Interpreting Government hospitals to include only a small class of persons who have worked under the Government of Bihar, is thus clearly erroneous and anti¬merit. Such an objective would not be defeated by the understanding of the Rules as has been construed by usIt may thus be seen that the Constitution envisages the setting up of hospitals by many different public authorities, including the Central Government, State Government, Municipalities and Panchayati Raj Institutions32. In addition, it is a well¬known fact that several hospitals throughout the country have been set up by instrumentalities of the Central or State Governments, more notably the Employees State Insurance Corporation Hospitals, to cater to the need of poor and needy persons. These hospitals, therefore, are at par with other government hospitals for all intents and purposes, and the experience gained by a doctor in such hospitals subsume the characteristics acquired in a hospital set up by the Bihar Government33. Other hospitals are also established by instrumentalities of the States and the Centre in pursuance of Constitutional obligations under Part IV. These although not strictly covered within the ambit of the Rules as propounded by the respondents, nevertheless serve the same purpose of providing best medical facilities to public at large. An apt example is of Army hospitals, and there is little reason to ignore and overlook the experience gained in such hospitals. | 1 | 5,135 | 1,769 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
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the system and cause interpretative chaos which would undermine the fair and just right to compete for public employment. 27. Further, if faced between a choice in which only a few people would be eligible versus a fairly large group, we feel that the latter ought to be adopted to have a diverse pool of applicants. This would promote merit, bring better doctors and further the Constitutional scheme of providing equal opportunity in public employment to the masses. We are thus of the view that the provisions of the Rules in the case¬at¬hand cannot be construed or explained by applying the principle of literal interpretation. Purposive Interpretation 28. In pursuance to the above analysis, we are of the view that it is necessary to resort to purposive interpretation of the provisions of the Rules, in light of its objectives. Otherwise also as per the prefatory part of Article 309, the Rules framed thereunder must be in conformity with all other Constitutional provisions, which necessarily includes Part III. Dealing with recruitment in Government hospitals, it is clear that the object and purpose of the Rules too must satisfy the test of Article 16. 29. Further, given the absence of express definition of Government hospitals under the Rules which is the central stage of this debate, we deem it fit to make use of Constitutional values as a tool of statutory interpretation. It is well known the Constitution must not only be seen as a benchmark for testing the validity of legislations, but also as an inspirational document to guide State action. When there are two plausible interpretations, the one which promotes Constitutional values must be preferred. 30. Under our constitutional scheme, obligations and duties of the State have eloquently been divided using a three¬tier system of governance. The Union of India at the national level, individual State Governments at the State Level and various Municipalities/Panchayats at the local level, parallelly discharge their respective Constitutional duties for the welfare of the general public. 31. In deference to their duties to raise the standard of living, ensure adequate nutrition and public health of its people under Article 47 of the Constitution, both the Central as well as the State Governments formulate various welfare schemes and establish institutions including hospitals/primary health centres. Still further, under Article 243G read with Entry 23 of Schedule XI of the Constitution, the legislature of the State can entrust the functions of Health and sanitation, including hospitals, primary health centres and dispensaries to the Panchayati Raj Institutions. Similarly, the State legislature may entrust under Article 243W read with Entry 6 of Schedule XII, the functions of Public health, sanitation conservancy and solid waste management to Municipalities. Hospitals of these local governments are often run on the back of funds derived from the Consolidated Fund of the States. It may thus be seen that the Constitution envisages the setting up of hospitals by many different public authorities, including the Central Government, State Government, Municipalities and Panchayati Raj Institutions. 32. In addition, it is a well¬known fact that several hospitals throughout the country have been set up by instrumentalities of the Central or State Governments, more notably the Employees State Insurance Corporation Hospitals, to cater to the need of poor and needy persons. These hospitals, therefore, are at par with other government hospitals for all intents and purposes, and the experience gained by a doctor in such hospitals subsume the characteristics acquired in a hospital set up by the Bihar Government. 33. Other hospitals are also established by instrumentalities of the States and the Centre in pursuance of Constitutional obligations under Part IV. These although not strictly covered within the ambit of the Rules as propounded by the respondents, nevertheless serve the same purpose of providing best medical facilities to public at large. An apt example is of Army hospitals, and there is little reason to ignore and overlook the experience gained in such hospitals. 34. It is hence irrational to urge that the work experience in any such hospital is different from that in a Government of Bihar hospital. Hence, it would be Constitutionally unjust to allow differentiation between the experience gained by doctors at these hospitals established by Panchayats or Municipalities or by the Central Government and its instrumentalities in the territory of Bihar vis¬à¬vis those run by the Bihar Government. Any attempt to discriminate between hospitals run by the State Government and the Central Government or Municipalities/Panchayati Raj Institutions is bound to hit the very ethos of our Constitutional governance setup. 35. Having said so, we are not oblivious to the fact that equality does not imply that there can be no classification. Instead, sometimes it may be necessary to treat unequals unequally, for equal treatment of persons with unequal circumstances creates an unjust situation.Indira Sawhney v. Union of India 1992 Supp. (3) SCC 217 ¶ 415.Such classification, however, must not be arbitrary but rationally founded on some quality or characteristics which are identifiable within the class of people so created and absent in those excluded from such classification 36. We are of the view that the purpose behind formulation of the Rules was to recognize the unique challenges of hospitals in Bihar and incentivise doctors to work in non-private hospitals. There is some substance in the submission of learned counsel for the respondents that Bihar is predominantly poor and thus requires doctors having exposure to such challenging environment as compared to their counterparts in private hospitals. Experience in a non¬private hospital instills sensitivity in its doctors, making them more adept to understand the ail and agony of poor patients. Such experience will undoubtedly be useful in furthering the object of Government hospitals and must be given due weightage while selecting suitable candidates. Interpreting Government hospitals to include only a small class of persons who have worked under the Government of Bihar, is thus clearly erroneous and anti¬merit. Such an objective would not be defeated by the understanding of the Rules as has been construed by us. CONCLUSION
### Response:
1
### Explanation:
phrase is any Government hospital. Here, Government is restrictively defining the noun hospital to exclude those run by certain entities. Thus, Government as part of Government hospital is a noun adjunct and has been used as an adjective. Such usage of a noun in its adjectival form changes its character altogether and it would be unwise to import the meaning of its noun form. This is especially true considering how the prefatory portion of Rule 2 explicitly provides that the definitions as prescribed thereunder shall be referred to unless otherwise required in context. The phrase Government hospital therefore cannot be construed to exclude other non-private hospitals which are otherwise run exclusively with the aid and assistance of the Governments. Additionally given the difference in common usage wherein government hospital refers to all non-private hospitals and not hospitals established by a particular government, Rule 5 & 6(iii) would not be bound by Rule 2(a)26. In addition to this, adopting the respondents interpretation would increase uncertainty and create practical difficulties. When Rule 2(a) is applied to Government hospital there is substantial ambiguity created as to whether or not hospitals run by instrumentalities of the Government, which are not strictly owned by the Government of Bihar would be included within Rule 5. When a pointed question was put forth to learned counsel for the respondents as to whether a hospital established by the municipality or one run by an institute substantially funded by State money would be included in their definition, no clear answer was forthcoming. Such issues are bound to arise repeatedly in any selection process. Given how there is no simple answer to such questions, the rigid interpretation adopted by the Government would only lead to friction in the system and cause interpretative chaos which would undermine the fair and just right to compete for public employment27. Further, if faced between a choice in which only a few people would be eligible versus a fairly large group, we feel that the latter ought to be adopted to have a diverse pool of applicants. This would promote merit, bring better doctors and further the Constitutional scheme of providing equal opportunity in public employment to the masses. We are thus of the view that the provisions of the Rules in the case¬at¬hand cannot be construed or explained by applying the principle of literal interpretation28. In pursuance to the above analysis, we are of the view that it is necessary to resort to purposive interpretation of the provisions of the Rules, in light of its objectives. Otherwise also as per the prefatory part of Article 309, the Rules framed thereunder must be in conformity with all other Constitutional provisions, which necessarily includes Part III. Dealing with recruitment in Government hospitals, it is clear that the object and purpose of the Rules too must satisfy the test of Article 1634. It is hence irrational to urge that the work experience in any such hospital is different from that in a Government of Bihar hospital. Hence, it would be Constitutionally unjust to allow differentiation between the experience gained by doctors at these hospitals established by Panchayats or Municipalities or by the Central Government and its instrumentalities in the territory of Bihar vis¬à¬vis those run by the Bihar Government. Any attempt to discriminate between hospitals run by the State Government and the Central Government or Municipalities/Panchayati Raj Institutions is bound to hit the very ethos of our Constitutional governance setup35. Having said so, we are not oblivious to the fact that equality does not imply that there can be no classification. Instead, sometimes it may be necessary to treat unequals unequally, for equal treatment of persons with unequal circumstances creates an unjust situation.Indira Sawhney v. Union of India 1992 Supp. (3) SCC 217 ¶ 415.Such classification, however, must not be arbitrary but rationally founded on some quality or characteristics which are identifiable within the class of people so created and absent in those excluded from such classification36. We are of the view that the purpose behind formulation of the Rules was to recognize the unique challenges of hospitals in Bihar and incentivise doctors to work in non-private hospitals. There is some substance in the submission of learned counsel for the respondents that Bihar is predominantly poor and thus requires doctors having exposure to such challenging environment as compared to their counterparts in private hospitals. Experience in a non¬private hospital instills sensitivity in its doctors, making them more adept to understand the ail and agony of poor patients. Such experience will undoubtedly be useful in furthering the object of Government hospitals and must be given due weightage while selecting suitable candidates. Interpreting Government hospitals to include only a small class of persons who have worked under the Government of Bihar, is thus clearly erroneous and anti¬merit. Such an objective would not be defeated by the understanding of the Rules as has been construed by usIt may thus be seen that the Constitution envisages the setting up of hospitals by many different public authorities, including the Central Government, State Government, Municipalities and Panchayati Raj Institutions32. In addition, it is a well¬known fact that several hospitals throughout the country have been set up by instrumentalities of the Central or State Governments, more notably the Employees State Insurance Corporation Hospitals, to cater to the need of poor and needy persons. These hospitals, therefore, are at par with other government hospitals for all intents and purposes, and the experience gained by a doctor in such hospitals subsume the characteristics acquired in a hospital set up by the Bihar Government33. Other hospitals are also established by instrumentalities of the States and the Centre in pursuance of Constitutional obligations under Part IV. These although not strictly covered within the ambit of the Rules as propounded by the respondents, nevertheless serve the same purpose of providing best medical facilities to public at large. An apt example is of Army hospitals, and there is little reason to ignore and overlook the experience gained in such hospitals.
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U.P. State Electricity Board Vs. Upper Jamuna Valley Electri.Sup.Co | the provisions of Articles 19(1)(f) and 31 stood at the relevant time. Articles 19(1)(f) and 31 were deleted later; but that does not affect the constitutional position with reference to which the present cases would require to be decided." * Thus, in this case this Court proceeded on the basis that Articles 19(1)(f) and 31 applied to the facts of that case. The Court still set aside the judgment of the High Court which had upheld the challenge. This Court still held that the challenge on grounds of violation of Articles 14, 19 and 31 fails. The contention that compensation was not adequate and/or illusory was not accepted. In Vallore Electric Corporations case 1989 SC 575) also this court considered the challenge to the change in the method of valuation from market value to book value on the basis of Articles 19(1)(g) and 31. In this case also it was held that such a contention was not available, as it had been negatived in Tinsukhias case 1989 SC 576). 19. In our view, the authorities in Tinsukhias case 1989 SC 576) Thana Electric Supply Companys case 1989 SC 578) and Vellore Electric Corporations case 1989 SC 575) fully cover the point urged by Dr. Singhvi. Even if the principles laid down in Coopers case 1970 SC 575) (supra) are applicable, still it has been held by this Court, in the above mentioned three cases that principles of valuation on book value is a well known concept of valuation and that the amount is not illusory. We, therefore, see no. substance in this challenge. 20. Dr. Singhvi, however, submitted that the notice to take over the undertaking was given on November 30, 1962 and the undertaking was taken over on June 28, 1964. He submitted that on the date of takeover the rights of the 1st Respondent had crystallised. He submitted that the 1st respondent, therefore, became entitled to receive the market value of the property. He submitted that as the amount payable had already got crystallised, a subsequent acquisition could only be acquisition of money. He submitted that on June 28, 1964 the vesting took place. He submitted that thereafter nothing more than payment of money was to be done. He submitted that by a retrospective amendment, made in 1975, money could not be compulsory acquired. He submitted that there could be no. public purpose in acquisition of money and that such acquisition would amount to a forced loan. He submitted that the restrictions laid down by the retrospective amendment were not reasonable. He submitted that no. reasons for such restrictions were given or could exist. He submitted that by the amendment the crystallised right to money was being taken away. 21. In support of his submission Dr. Singhvi relied upon the case of Madan Mohan Pathak v. Union of India reported in 1978 SC 152 : 1978 Lab IC 612). In that case there was a settlement between the management and the labour under which an annual cash bonus was to be paid to Class III and Class IV employees. By the Life Insurance Corporation (Modification of Settlement) Act, 1976 Class III and Class IV employees were sought to be deprived of the annual cash bonus that they are entitled to receive under the settlement. This Court held that the term Property under Articles 19(1)(f), 31(1) and 31(2) had to be given the widest interpretation and refers to property of every kind, tangible or intangible, debts and chose-in-action. It was held that the chose-in-action could be compulsory acquired under Article 31(2). It was held that the right to receive the annual cash settlement was a right to property within the meaning of Article 31(2). It was held that extinguishments of the debt of a creditor with the corresponding benefit to the State or State owned/controlled corporation would be transfer of ownership to the State and would amount to compulsory acquisition under Article 31(2). It was held that acquisition of money, debt and/or chose in action must be made to serve a public purpose. It was held that the Impugned Act was a pure and simple case of deprivation of the rights of the Class II and Class IV employees without any apparent nexus with any public interest. It was held that an acquisition of a chose-in-action could not be for the purpose of augmenting the revenues of the State or reducing State expenditure as that would not be a public purpose and would be violative of the constitutional guarantee embodied in Article 31(2). It was held that an acquisition of this nature amounted to forced loan. Dr. Singhvi also relied upon the case of State of Bihar v. Maharajadhiraja Sir Kameshwar Singh of Darbhanga reported in 1952 SCR 889 : 1952 AIR(SC) 252). 22. We are unable to accept the submission. As has been held in Tinsukhias case 1989 SC 576); Thana Electric Supply Companys case 1989 SC 578) and Vellore Electric Corporations case 1989 SC 575) what has been acquired is not a chose-in-action or a debt. What been acquired is the undertaking which dealt with material resource of the country. There was no. crystallisation of any amount. The only right was a right to receive compensation which was to be worked out on certain principles. All that the amending Act has done is to change the method or principle on the basis of which the compensation was to be worked out. It has been held that the legislation is not a piece of colourable legislation. It has also been held, in the above mentioned cases, that the provisions for quantification of the amount payable to the undertaking form an integral and inseperable part of the nationalisation and do not admit of being considered as distinct provisions independent of each other. It has been held that the economic costs of nationalization was not justiciable. In our view this case is fully covered by the judgments in Tinsukhias case, Thana Electric Supply Companys case and Vallore Electric Corporations case. | 1[ds]16. We have considered the submissions of Dr. Singhvi undoubtedly, the law which is to prevail is the law which was prevailing on the date of take over, i.e., 28th of June, 1964. It is also clear that on that day the Constitutionh Amendment) Act had not been enacted and Article 31(c) was not there. Undoubtedly, in Coopers case 1969 SC 442) it has been held that even after amendment of Article 31(c) the term "compensation" meant "just equivalent" or "full indemnification." However, Coopers case itself notes that there has been a change inasmuch as if the law pertains to change in the principles of the method of determination of compensation and the method is a recognized principle applicable in the determination of compensation and the principle is appropriate in determining the value of the property, then it would not be open to the Courts to question the valuation. Coopers case also lays down that if several principles are appropriate and one is selected for determination of the value of the property to be acquired, selection of that principle to the exclusion of other principles is not open to challenge, for the selection must be left to the wisdom of the Parliament. Of course, the principles specified must be appropriate to the determination of compensation for an appropriate class of property sought to be acquired19. In our view, the authorities in Tinsukhias case 1989 SC 576) Thana Electric Supply Companys case 1989 SC 578) and Vellore Electric Corporations case 1989 SC 575) fully cover the point urged by Dr. Singhvi. Even if the principles laid down in Coopers case 1970 SC 575) (supra) are applicable, still it has been held by this Court, in the above mentioned three cases that principles of valuation on book value is a well known concept of valuation and that the amount is not illusory. We, therefore, see no. substance in this challengeDr. Singhvi, however, submitted that the notice to take over the undertaking was given on November 30, 1962 and the undertaking was taken over on June 28, 1964. He submitted that on the date of takeover the rights of the 1st Respondent had crystallised. He submitted that the 1st respondent, therefore, became entitled to receive the market value of the property. He submitted that as the amount payable had already got crystallised, a subsequent acquisition could only be acquisition of money. He submitted that on June 28, 1964 the vesting took place. He submitted that thereafter nothing more than payment of money was to be done. He submitted that by a retrospective amendment, made in 1975, money could not be compulsory acquired. He submitted that there could be no. public purpose in acquisition of money and that such acquisition would amount to a forced loan. He submitted that the restrictions laid down by the retrospective amendment were not reasonable. He submitted that no. reasons for such restrictions were given or could exist. He submitted that by the amendment the crystallised right to money was being taken away21. In support of his submission Dr. Singhvi relied upon the case of Madan Mohan Pathak v. Union of India reported in 1978 SC 152 : 1978 Lab IC 612). In that case there was a settlement between the management and the labour under which an annual cash bonus was to be paid to Class III and Class IV employees. By the Life Insurance Corporation (Modification of Settlement) Act, 1976 Class III and Class IV employees were sought to be deprived of the annual cash bonus that they are entitled to receive under the settlement. This Court held that the term Property under Articles 19(1)(f), 31(1) and 31(2) had to be given the widest interpretation and refers to property of every kind, tangible or intangible, debts and. It was held that then could be compulsory acquired under Article31(2). It was held thatthe right to receive theannual cash settlement was a right to property within the meaning of Article31(2). It was held thatextinguishments of the debt of a creditor with the corresponding benefit to the State or State owned/controlled corporation would be transfer of ownership to the State and would amount to compulsory acquisition under Article31(2). It was held thatacquisition of money, debt and/or chose in action must be made to serve a publicpurpose.It was held that theImpugned Act was a pure and simple case of deprivation of the rights of the Class II and Class IV employees without any apparent nexus with any public interest. It was held that an acquisition of an could not be for the purpose of augmenting the revenues of the State or reducing State expenditure as that would not be a public purpose and would be violative of the constitutional guarantee embodied in Article31(2). It was held thatan acquisition of this nature amounted to forced loan. Dr. Singhvi also relied upon the case of State of Bihar v. Maharajadhiraja Sir Kameshwar Singh of Darbhanga reported in 1952 SCR 889 : 1952 AIR(SC) 252)22. We are unable to accept the submission. As has been held in Tinsukhias case 1989 SC 576); Thana Electric Supply Companys case 1989 SC 578) and Vellore Electric Corporations case 1989 SC 575) what has been acquired is not an or a debt. What been acquired is the undertaking which dealt with material resource of the country. There was no. crystallisation of any amount. The only right was a right to receive compensation which was to be worked out on certain principles. All that the amending Act has done is to change the method or principle on the basis of which the compensation was to be worked out. It has been held that the legislation is not a piece of colourable legislation. It has also been held, in the above mentioned cases, that the provisions for quantification of the amount payable to the undertaking form an integral and inseperable part of the nationalisation and do not admit of being considered as distinct provisions independent of each other. It has been held that the economic costs of nationalization was not justiciable. In our view this case is fully covered by the judgments in Tinsukhias case, Thana Electric Supply Companys case and Vallore Electric Corporations case. | 1 | 6,718 | 1,174 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
### Input:
the provisions of Articles 19(1)(f) and 31 stood at the relevant time. Articles 19(1)(f) and 31 were deleted later; but that does not affect the constitutional position with reference to which the present cases would require to be decided." * Thus, in this case this Court proceeded on the basis that Articles 19(1)(f) and 31 applied to the facts of that case. The Court still set aside the judgment of the High Court which had upheld the challenge. This Court still held that the challenge on grounds of violation of Articles 14, 19 and 31 fails. The contention that compensation was not adequate and/or illusory was not accepted. In Vallore Electric Corporations case 1989 SC 575) also this court considered the challenge to the change in the method of valuation from market value to book value on the basis of Articles 19(1)(g) and 31. In this case also it was held that such a contention was not available, as it had been negatived in Tinsukhias case 1989 SC 576). 19. In our view, the authorities in Tinsukhias case 1989 SC 576) Thana Electric Supply Companys case 1989 SC 578) and Vellore Electric Corporations case 1989 SC 575) fully cover the point urged by Dr. Singhvi. Even if the principles laid down in Coopers case 1970 SC 575) (supra) are applicable, still it has been held by this Court, in the above mentioned three cases that principles of valuation on book value is a well known concept of valuation and that the amount is not illusory. We, therefore, see no. substance in this challenge. 20. Dr. Singhvi, however, submitted that the notice to take over the undertaking was given on November 30, 1962 and the undertaking was taken over on June 28, 1964. He submitted that on the date of takeover the rights of the 1st Respondent had crystallised. He submitted that the 1st respondent, therefore, became entitled to receive the market value of the property. He submitted that as the amount payable had already got crystallised, a subsequent acquisition could only be acquisition of money. He submitted that on June 28, 1964 the vesting took place. He submitted that thereafter nothing more than payment of money was to be done. He submitted that by a retrospective amendment, made in 1975, money could not be compulsory acquired. He submitted that there could be no. public purpose in acquisition of money and that such acquisition would amount to a forced loan. He submitted that the restrictions laid down by the retrospective amendment were not reasonable. He submitted that no. reasons for such restrictions were given or could exist. He submitted that by the amendment the crystallised right to money was being taken away. 21. In support of his submission Dr. Singhvi relied upon the case of Madan Mohan Pathak v. Union of India reported in 1978 SC 152 : 1978 Lab IC 612). In that case there was a settlement between the management and the labour under which an annual cash bonus was to be paid to Class III and Class IV employees. By the Life Insurance Corporation (Modification of Settlement) Act, 1976 Class III and Class IV employees were sought to be deprived of the annual cash bonus that they are entitled to receive under the settlement. This Court held that the term Property under Articles 19(1)(f), 31(1) and 31(2) had to be given the widest interpretation and refers to property of every kind, tangible or intangible, debts and chose-in-action. It was held that the chose-in-action could be compulsory acquired under Article 31(2). It was held that the right to receive the annual cash settlement was a right to property within the meaning of Article 31(2). It was held that extinguishments of the debt of a creditor with the corresponding benefit to the State or State owned/controlled corporation would be transfer of ownership to the State and would amount to compulsory acquisition under Article 31(2). It was held that acquisition of money, debt and/or chose in action must be made to serve a public purpose. It was held that the Impugned Act was a pure and simple case of deprivation of the rights of the Class II and Class IV employees without any apparent nexus with any public interest. It was held that an acquisition of a chose-in-action could not be for the purpose of augmenting the revenues of the State or reducing State expenditure as that would not be a public purpose and would be violative of the constitutional guarantee embodied in Article 31(2). It was held that an acquisition of this nature amounted to forced loan. Dr. Singhvi also relied upon the case of State of Bihar v. Maharajadhiraja Sir Kameshwar Singh of Darbhanga reported in 1952 SCR 889 : 1952 AIR(SC) 252). 22. We are unable to accept the submission. As has been held in Tinsukhias case 1989 SC 576); Thana Electric Supply Companys case 1989 SC 578) and Vellore Electric Corporations case 1989 SC 575) what has been acquired is not a chose-in-action or a debt. What been acquired is the undertaking which dealt with material resource of the country. There was no. crystallisation of any amount. The only right was a right to receive compensation which was to be worked out on certain principles. All that the amending Act has done is to change the method or principle on the basis of which the compensation was to be worked out. It has been held that the legislation is not a piece of colourable legislation. It has also been held, in the above mentioned cases, that the provisions for quantification of the amount payable to the undertaking form an integral and inseperable part of the nationalisation and do not admit of being considered as distinct provisions independent of each other. It has been held that the economic costs of nationalization was not justiciable. In our view this case is fully covered by the judgments in Tinsukhias case, Thana Electric Supply Companys case and Vallore Electric Corporations case.
### Response:
1
### Explanation:
also clear that on that day the Constitutionh Amendment) Act had not been enacted and Article 31(c) was not there. Undoubtedly, in Coopers case 1969 SC 442) it has been held that even after amendment of Article 31(c) the term "compensation" meant "just equivalent" or "full indemnification." However, Coopers case itself notes that there has been a change inasmuch as if the law pertains to change in the principles of the method of determination of compensation and the method is a recognized principle applicable in the determination of compensation and the principle is appropriate in determining the value of the property, then it would not be open to the Courts to question the valuation. Coopers case also lays down that if several principles are appropriate and one is selected for determination of the value of the property to be acquired, selection of that principle to the exclusion of other principles is not open to challenge, for the selection must be left to the wisdom of the Parliament. Of course, the principles specified must be appropriate to the determination of compensation for an appropriate class of property sought to be acquired19. In our view, the authorities in Tinsukhias case 1989 SC 576) Thana Electric Supply Companys case 1989 SC 578) and Vellore Electric Corporations case 1989 SC 575) fully cover the point urged by Dr. Singhvi. Even if the principles laid down in Coopers case 1970 SC 575) (supra) are applicable, still it has been held by this Court, in the above mentioned three cases that principles of valuation on book value is a well known concept of valuation and that the amount is not illusory. We, therefore, see no. substance in this challengeDr. Singhvi, however, submitted that the notice to take over the undertaking was given on November 30, 1962 and the undertaking was taken over on June 28, 1964. He submitted that on the date of takeover the rights of the 1st Respondent had crystallised. He submitted that the 1st respondent, therefore, became entitled to receive the market value of the property. He submitted that as the amount payable had already got crystallised, a subsequent acquisition could only be acquisition of money. He submitted that on June 28, 1964 the vesting took place. He submitted that thereafter nothing more than payment of money was to be done. He submitted that by a retrospective amendment, made in 1975, money could not be compulsory acquired. He submitted that there could be no. public purpose in acquisition of money and that such acquisition would amount to a forced loan. He submitted that the restrictions laid down by the retrospective amendment were not reasonable. He submitted that no. reasons for such restrictions were given or could exist. He submitted that by the amendment the crystallised right to money was being taken away21. In support of his submission Dr. Singhvi relied upon the case of Madan Mohan Pathak v. Union of India reported in 1978 SC 152 : 1978 Lab IC 612). In that case there was a settlement between the management and the labour under which an annual cash bonus was to be paid to Class III and Class IV employees. By the Life Insurance Corporation (Modification of Settlement) Act, 1976 Class III and Class IV employees were sought to be deprived of the annual cash bonus that they are entitled to receive under the settlement. This Court held that the term Property under Articles 19(1)(f), 31(1) and 31(2) had to be given the widest interpretation and refers to property of every kind, tangible or intangible, debts and. It was held that then could be compulsory acquired under Article31(2). It was held thatthe right to receive theannual cash settlement was a right to property within the meaning of Article31(2). It was held thatextinguishments of the debt of a creditor with the corresponding benefit to the State or State owned/controlled corporation would be transfer of ownership to the State and would amount to compulsory acquisition under Article31(2). It was held thatacquisition of money, debt and/or chose in action must be made to serve a publicpurpose.It was held that theImpugned Act was a pure and simple case of deprivation of the rights of the Class II and Class IV employees without any apparent nexus with any public interest. It was held that an acquisition of an could not be for the purpose of augmenting the revenues of the State or reducing State expenditure as that would not be a public purpose and would be violative of the constitutional guarantee embodied in Article31(2). It was held thatan acquisition of this nature amounted to forced loan. Dr. Singhvi also relied upon the case of State of Bihar v. Maharajadhiraja Sir Kameshwar Singh of Darbhanga reported in 1952 SCR 889 : 1952 AIR(SC) 252)22. We are unable to accept the submission. As has been held in Tinsukhias case 1989 SC 576); Thana Electric Supply Companys case 1989 SC 578) and Vellore Electric Corporations case 1989 SC 575) what has been acquired is not an or a debt. What been acquired is the undertaking which dealt with material resource of the country. There was no. crystallisation of any amount. The only right was a right to receive compensation which was to be worked out on certain principles. All that the amending Act has done is to change the method or principle on the basis of which the compensation was to be worked out. It has been held that the legislation is not a piece of colourable legislation. It has also been held, in the above mentioned cases, that the provisions for quantification of the amount payable to the undertaking form an integral and inseperable part of the nationalisation and do not admit of being considered as distinct provisions independent of each other. It has been held that the economic costs of nationalization was not justiciable. In our view this case is fully covered by the judgments in Tinsukhias case, Thana Electric Supply Companys case and Vallore Electric Corporations case.
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Hindustan Lever Limited Vs. Commissioner of Income Tax | receivable by any person against exports; and (iii-c) speaks of duty of customs which is not the case here. This argument can be described in the language of Lord Greene, M.R. in the case of Henriksen v. Grafton Hotel Ltd. ((1942) 24 TC 453 (TC at p. 460) as an attempt to rescue the case from shipwreck. Unfortunately, as in that case before Lord Greene, M.R., the attempt has been futile 5. We were referred to a large number of cases. We shall refer to some of them 6. In the case of CIT v. Wheel & Rim Co. of India Ltd. (Mad)) the Madras High Court had to deal with the case of an assessee exporting goods abroad. The assessee obtained cash subsidy from the Engineering Export Promotion Council. It also obtained import entitlement licences which were sold by it. The Madras High Court held that these profits and gains arose out of the export sales and specially in view of the rules framed under the Act, the assessee was entitled to get relief 7. The Madras view was dissented from by the Kerala High Court in the case of Cochin Co. v. CIT ( 1978 (144) ITR 822 (Ker)). That was again a case of sale of import entitlement. The Kerala High Court was of the view that sale of import entitlement was not the same thing as export of goods. The Kerala High Court was of the view that the price received from sale of import entitlements could not be regarded as profits and gains derived from the export of goods 8. None of these two cases really is of any relevance in this case. The case before us is not a case of sale of import entitlement but a case of utilisation of import entitlement. Because of the exports made by the assessee, the assessee was rewarded with the import entitlements. The assessee utilised all the import entitlements for import of palm oil which was consumed by the assessee in manufacturing of its own products. The products were sold for profit. The profit in this case arose out of sale of goods. That is the proximate cause of making of the profit 9. At this juncture, we can refer to the decision of the Privy Council in the case of CIT v. Raja Bahadur Kamakhaya Narayan Singh (PC)). In that case it was pointed out that the word "derived" is not a term of art. Its use in the definition demanded an inquiry into the genealogy of the product. But the Privy Council cautioned that the inquiry should stop as soon as the effective source is discovered. The question in that case was whether interest in respect of arrears of rent payable for land which was used for agricultural purposes would also be agricultural. The claim on behalf of the assessee was that since the rent was payable for agricultural land, the interest on delayed payment of such rent was also of agricultural character and was not taxable. It was explained by the Privy Council at p. 328"... Those who put it in this way say that such interest, when received, has its origin in the tenancy, because, if there had been no tenancy, there would have been no arrears of rent, and if there had been no arrears of rent, there would have been no statutory interest. Following this sequence of causes, they say that it is obvious that interest in circumstances such as these must be classified as "revenue derived from land ". The interest clearly is not rent. Rent is a technical conception, its leading characteristic being that it is a payment in money or in kind by one person to another in respect of the grant of a right to use land. Interest payable by statute on rent in arrears is not such a payment. It is not part of the rent, nor is it an accretion to it, though it is received in respect of it Equally clearly the interest on rent is revenue, but in their Lordships opinion it is not revenue derived from land. It is no doubt true that without the obligation to pay rent - and rent is obviously derived from land - there could be no arrears of rent and without arrears of rent there would be no interest. But the affirmative proposition that interest is derived from land does not emerge from the series of facts. All that emerges is that as regards the interest, land rent and non payment of rent stand together as causae sine quibus non. The source from which the interest is derived has not thereby been ascertained The word derived is not a term of art. Its use in the definition indeed demands an enquiry into the genealogy of the product. But the enquiry should stop as soon as the effective source is discovered. In the genealogical tree of the interest land indeed appears in the second degree, but the immediate and effective source is rent, which has suffered the accident of non-payment." * 10. In the instant case, the immediate source of the profit is sale of goods. The export of other goods is not even the second degree but it has to be traced to an even more remote degree. The import was of palm oil. The import was possible because of earlier export of goods at loss. In the chain of sequence the earlier export would be four degrees away 11. The decision of the Privy Council in the case of Kamakhaya Narayan Singh case ((PC)) was cited with approval in the case of Bacha F. Guzdar v. CIT. It was held in that case by this Court, after referring to Kamakhaya Narayan Singh ((1948) 16 325 (PC)) that where a company deriving income from agriculture declared dividend, the dividend did not arise from any agricultural source and could not be claimed to be income derived from agricultural activity 12. There is no necessity for multiplying authorities | 0[ds]10. In the instant case, the immediate source of the profit is sale of goods. The export of other goods is not even the second degree but it has to be traced to an even more remote degree. The import was of palm oil. The import was possible because of earlier export of goods at loss. In the chain of sequence the earlier export would be four degrees away | 0 | 2,135 | 79 | ### 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:
receivable by any person against exports; and (iii-c) speaks of duty of customs which is not the case here. This argument can be described in the language of Lord Greene, M.R. in the case of Henriksen v. Grafton Hotel Ltd. ((1942) 24 TC 453 (TC at p. 460) as an attempt to rescue the case from shipwreck. Unfortunately, as in that case before Lord Greene, M.R., the attempt has been futile 5. We were referred to a large number of cases. We shall refer to some of them 6. In the case of CIT v. Wheel & Rim Co. of India Ltd. (Mad)) the Madras High Court had to deal with the case of an assessee exporting goods abroad. The assessee obtained cash subsidy from the Engineering Export Promotion Council. It also obtained import entitlement licences which were sold by it. The Madras High Court held that these profits and gains arose out of the export sales and specially in view of the rules framed under the Act, the assessee was entitled to get relief 7. The Madras view was dissented from by the Kerala High Court in the case of Cochin Co. v. CIT ( 1978 (144) ITR 822 (Ker)). That was again a case of sale of import entitlement. The Kerala High Court was of the view that sale of import entitlement was not the same thing as export of goods. The Kerala High Court was of the view that the price received from sale of import entitlements could not be regarded as profits and gains derived from the export of goods 8. None of these two cases really is of any relevance in this case. The case before us is not a case of sale of import entitlement but a case of utilisation of import entitlement. Because of the exports made by the assessee, the assessee was rewarded with the import entitlements. The assessee utilised all the import entitlements for import of palm oil which was consumed by the assessee in manufacturing of its own products. The products were sold for profit. The profit in this case arose out of sale of goods. That is the proximate cause of making of the profit 9. At this juncture, we can refer to the decision of the Privy Council in the case of CIT v. Raja Bahadur Kamakhaya Narayan Singh (PC)). In that case it was pointed out that the word "derived" is not a term of art. Its use in the definition demanded an inquiry into the genealogy of the product. But the Privy Council cautioned that the inquiry should stop as soon as the effective source is discovered. The question in that case was whether interest in respect of arrears of rent payable for land which was used for agricultural purposes would also be agricultural. The claim on behalf of the assessee was that since the rent was payable for agricultural land, the interest on delayed payment of such rent was also of agricultural character and was not taxable. It was explained by the Privy Council at p. 328"... Those who put it in this way say that such interest, when received, has its origin in the tenancy, because, if there had been no tenancy, there would have been no arrears of rent, and if there had been no arrears of rent, there would have been no statutory interest. Following this sequence of causes, they say that it is obvious that interest in circumstances such as these must be classified as "revenue derived from land ". The interest clearly is not rent. Rent is a technical conception, its leading characteristic being that it is a payment in money or in kind by one person to another in respect of the grant of a right to use land. Interest payable by statute on rent in arrears is not such a payment. It is not part of the rent, nor is it an accretion to it, though it is received in respect of it Equally clearly the interest on rent is revenue, but in their Lordships opinion it is not revenue derived from land. It is no doubt true that without the obligation to pay rent - and rent is obviously derived from land - there could be no arrears of rent and without arrears of rent there would be no interest. But the affirmative proposition that interest is derived from land does not emerge from the series of facts. All that emerges is that as regards the interest, land rent and non payment of rent stand together as causae sine quibus non. The source from which the interest is derived has not thereby been ascertained The word derived is not a term of art. Its use in the definition indeed demands an enquiry into the genealogy of the product. But the enquiry should stop as soon as the effective source is discovered. In the genealogical tree of the interest land indeed appears in the second degree, but the immediate and effective source is rent, which has suffered the accident of non-payment." * 10. In the instant case, the immediate source of the profit is sale of goods. The export of other goods is not even the second degree but it has to be traced to an even more remote degree. The import was of palm oil. The import was possible because of earlier export of goods at loss. In the chain of sequence the earlier export would be four degrees away 11. The decision of the Privy Council in the case of Kamakhaya Narayan Singh case ((PC)) was cited with approval in the case of Bacha F. Guzdar v. CIT. It was held in that case by this Court, after referring to Kamakhaya Narayan Singh ((1948) 16 325 (PC)) that where a company deriving income from agriculture declared dividend, the dividend did not arise from any agricultural source and could not be claimed to be income derived from agricultural activity 12. There is no necessity for multiplying authorities
### Response:
0
### Explanation:
10. In the instant case, the immediate source of the profit is sale of goods. The export of other goods is not even the second degree but it has to be traced to an even more remote degree. The import was of palm oil. The import was possible because of earlier export of goods at loss. In the chain of sequence the earlier export would be four degrees away
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Harpal Singh @ Chhota Vs. State Of Punjab | to the cell phones involved including those, amongst others recovered from the accused persons, the prosecution has failed to adduce a certificate relatable thereto as required under Section 65B(4) of the Act. Though the High Court, in its impugned judgment, while dwelling on this aspect, has dismissed the plea of inadmissibility of such call details by observing that all the stipulations contained under Section 65 of the Act had been complied with, in the teeth of the decision of this Court in Anvar P.V. (supra) ordaining an inflexible adherence to the enjoinments of Sections 65B(2) and (4) of the Act, we are unable to sustain this finding. As apparently the prosecution has relied upon the secondary evidence in the form of printed copy of the call details, even assuming that the mandate of Section 65B(2) had been complied with, in absence of a certificate under Section 65B(4), the same has to be held inadmissible in evidence. This Court in Anvar P.V. (supra) has held in no uncertain terms that the evidence relating to electronic record being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Act would have to yield thereto. It has been propounded that any electric record in the form of secondary evidence cannot be admitted in evidence unless the requirements of Section 65B are satisfied. This conclusion of ours is inevitable in view of the exposition of law pertaining to Sections 65A and 65B of the Act as above. 12. Be that as it may, on an overall assessment of the entire gamut of evidence, we are of the comprehension that the charges against the accused persons including the appellants stand proved beyond reasonable doubt even sans the call details. To reiterate, the gravamen of the imputations levelled against them is that of conspiracy and abduction of the victim pursuant thereto for ransom by detaining him under the threat to cause death or hurt and thereby to compel his father to meet their demand. 13. As it is, as has been exposited by this Court on umpteen occasions, conspiracy requires an act i.e. actus reus and an accompanying mental state i.e. mens rea. Whereas the agreement constitutes the act, the intention to achieve the unlawful objectives of the agreement comprises the required mental state. This Court in Ferozuddin Basheeruddin and Others v. State of Kerala, 2001(4) R.C.R.(Criminal) 20 : (2001) 7 SCC 596 held that conspiracy is a clandestine activity and by the sheer nature thereof, an agreement to that effect can rarely be established by direct proof and must be inferred from circumstantial evidence of cooperation between the conspirators. It has been enunciated that conspiracy is not only a substantive crime but also serves as a basis for holding one person liable for the crime of others where application of the usual doctrines of complicity would not render that person liable and thus the test of the role of a co-conspirator would be decisively significant in determining the liability of the others in the face of the supervening fact that the crime was performed as a part of a larger division of labour to which the accused had also contributed his efforts. Qua the admissibility of evidence, it was proclaimed that loosened standards prevail in a conspiracy trial and contrary to the usual role, in conspiracy prosecutions, any declaration by one conspirator made in furtherance of a conspiracy and during its pendency, is admissible against each co-conspirator. It was thus ruled that conspirators are liable on an agency theory by the statements of co-conspirators, just as they are for the overt acts and crimes committed by their confreres. In a later pronouncement in Mir Nagvi Askari v. Central Bureau of Investigation, 2010(5) R.C.R.(Criminal) 425 : (2009) 15 SCC 643 , it was ruled in the same vein that while drawing an inference from the materials brought on record to arrive at a finding as to whether the charge of the criminal conspiracy had been proved or not, it must be borne in mind that a conspiracy is hatched in secrecy and it is difficult, if not impossible, to obtain direct evidence to establish the same. The following extract from the decision in Mohd. Amin v. CBI, 2009(1) R.C.R.(Criminal) 143 : 2008(6) Recent Apex Judgments (R.A.J.) 577 : (2008) 15 SCC 49 was quoted with approval: "74. The principles which can be deduced from the above-noted judgments are that for proving a charge of conspiracy, it is not necessary that all the conspirators know each and every detail of the conspiracy so long as they are co-participators in the main object of conspiracy. It is also not necessary that all the conspirators should participate from the inception of conspiracy to its end. If there is unity of object or purpose, all participating at different stages of the crime will be guilty of conspiracy." As would be patent from the above excerpt that qua a charge of conspiracy, it is not necessary that all the conspirators should know each and every detail of the plot so long as they are co-participators in the main object thereof and it is also not necessary that all of them should participate from the inception of the stratagem till the end, the determinative factor, being unity of object or purpose and their participation at different stages. Such is therefore the encompassing sweep of culpability of an offence of conspiracy, if proved, even from the established attendant circumstances.14. Having regard to the proved facts and the state of law, adverted to hereinabove, we are of the considered view that the prosecution has been able to prove the charges levelled against the appellants. Both the courts below have analysed the evidence in the correct perspectives and in the face of the conclusions recorded on the different aspects of the imputations levelled against them, we are of the opinion that no interference is called for with the impugned judgment of conviction and sentence recorded against them. | 0[ds]12. Be that as it may, on an overall assessment of the entire gamut of evidence, we are of the comprehension that the charges against the accused persons including the appellants stand proved beyond reasonable doubt even sans the call details. To reiterate, the gravamen of the imputations levelled against them is that of conspiracy and abduction of the victim pursuant thereto for ransom by detaining him under the threat to cause death or hurt and thereby to compel his father to meet theirwould be patent from the above excerpt that qua a charge of conspiracy, it is not necessary that all the conspirators should know each and every detail of the plot so long as they are co-participators in the main object thereof and it is also not necessary that all of them should participate from the inception of the stratagem till the end, the determinative factor, being unity of object or purpose and their participation at different stages. Such is therefore the encompassing sweep of culpability of an offence of conspiracy, if proved, even from the established attendant circumstances.14. Having regard to the proved facts and the state of law, adverted to hereinabove, we are of the considered view that the prosecution has been able to prove the charges levelled against the appellants. Both the courts below have analysed the evidence in the correct perspectives and in the face of the conclusions recorded on the different aspects of the imputations levelled against them, we are of the opinion that no interference is called for with the impugned judgment of conviction and sentence recorded against them. | 0 | 10,635 | 288 | ### 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:
to the cell phones involved including those, amongst others recovered from the accused persons, the prosecution has failed to adduce a certificate relatable thereto as required under Section 65B(4) of the Act. Though the High Court, in its impugned judgment, while dwelling on this aspect, has dismissed the plea of inadmissibility of such call details by observing that all the stipulations contained under Section 65 of the Act had been complied with, in the teeth of the decision of this Court in Anvar P.V. (supra) ordaining an inflexible adherence to the enjoinments of Sections 65B(2) and (4) of the Act, we are unable to sustain this finding. As apparently the prosecution has relied upon the secondary evidence in the form of printed copy of the call details, even assuming that the mandate of Section 65B(2) had been complied with, in absence of a certificate under Section 65B(4), the same has to be held inadmissible in evidence. This Court in Anvar P.V. (supra) has held in no uncertain terms that the evidence relating to electronic record being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Act would have to yield thereto. It has been propounded that any electric record in the form of secondary evidence cannot be admitted in evidence unless the requirements of Section 65B are satisfied. This conclusion of ours is inevitable in view of the exposition of law pertaining to Sections 65A and 65B of the Act as above. 12. Be that as it may, on an overall assessment of the entire gamut of evidence, we are of the comprehension that the charges against the accused persons including the appellants stand proved beyond reasonable doubt even sans the call details. To reiterate, the gravamen of the imputations levelled against them is that of conspiracy and abduction of the victim pursuant thereto for ransom by detaining him under the threat to cause death or hurt and thereby to compel his father to meet their demand. 13. As it is, as has been exposited by this Court on umpteen occasions, conspiracy requires an act i.e. actus reus and an accompanying mental state i.e. mens rea. Whereas the agreement constitutes the act, the intention to achieve the unlawful objectives of the agreement comprises the required mental state. This Court in Ferozuddin Basheeruddin and Others v. State of Kerala, 2001(4) R.C.R.(Criminal) 20 : (2001) 7 SCC 596 held that conspiracy is a clandestine activity and by the sheer nature thereof, an agreement to that effect can rarely be established by direct proof and must be inferred from circumstantial evidence of cooperation between the conspirators. It has been enunciated that conspiracy is not only a substantive crime but also serves as a basis for holding one person liable for the crime of others where application of the usual doctrines of complicity would not render that person liable and thus the test of the role of a co-conspirator would be decisively significant in determining the liability of the others in the face of the supervening fact that the crime was performed as a part of a larger division of labour to which the accused had also contributed his efforts. Qua the admissibility of evidence, it was proclaimed that loosened standards prevail in a conspiracy trial and contrary to the usual role, in conspiracy prosecutions, any declaration by one conspirator made in furtherance of a conspiracy and during its pendency, is admissible against each co-conspirator. It was thus ruled that conspirators are liable on an agency theory by the statements of co-conspirators, just as they are for the overt acts and crimes committed by their confreres. In a later pronouncement in Mir Nagvi Askari v. Central Bureau of Investigation, 2010(5) R.C.R.(Criminal) 425 : (2009) 15 SCC 643 , it was ruled in the same vein that while drawing an inference from the materials brought on record to arrive at a finding as to whether the charge of the criminal conspiracy had been proved or not, it must be borne in mind that a conspiracy is hatched in secrecy and it is difficult, if not impossible, to obtain direct evidence to establish the same. The following extract from the decision in Mohd. Amin v. CBI, 2009(1) R.C.R.(Criminal) 143 : 2008(6) Recent Apex Judgments (R.A.J.) 577 : (2008) 15 SCC 49 was quoted with approval: "74. The principles which can be deduced from the above-noted judgments are that for proving a charge of conspiracy, it is not necessary that all the conspirators know each and every detail of the conspiracy so long as they are co-participators in the main object of conspiracy. It is also not necessary that all the conspirators should participate from the inception of conspiracy to its end. If there is unity of object or purpose, all participating at different stages of the crime will be guilty of conspiracy." As would be patent from the above excerpt that qua a charge of conspiracy, it is not necessary that all the conspirators should know each and every detail of the plot so long as they are co-participators in the main object thereof and it is also not necessary that all of them should participate from the inception of the stratagem till the end, the determinative factor, being unity of object or purpose and their participation at different stages. Such is therefore the encompassing sweep of culpability of an offence of conspiracy, if proved, even from the established attendant circumstances.14. Having regard to the proved facts and the state of law, adverted to hereinabove, we are of the considered view that the prosecution has been able to prove the charges levelled against the appellants. Both the courts below have analysed the evidence in the correct perspectives and in the face of the conclusions recorded on the different aspects of the imputations levelled against them, we are of the opinion that no interference is called for with the impugned judgment of conviction and sentence recorded against them.
### Response:
0
### Explanation:
12. Be that as it may, on an overall assessment of the entire gamut of evidence, we are of the comprehension that the charges against the accused persons including the appellants stand proved beyond reasonable doubt even sans the call details. To reiterate, the gravamen of the imputations levelled against them is that of conspiracy and abduction of the victim pursuant thereto for ransom by detaining him under the threat to cause death or hurt and thereby to compel his father to meet theirwould be patent from the above excerpt that qua a charge of conspiracy, it is not necessary that all the conspirators should know each and every detail of the plot so long as they are co-participators in the main object thereof and it is also not necessary that all of them should participate from the inception of the stratagem till the end, the determinative factor, being unity of object or purpose and their participation at different stages. Such is therefore the encompassing sweep of culpability of an offence of conspiracy, if proved, even from the established attendant circumstances.14. Having regard to the proved facts and the state of law, adverted to hereinabove, we are of the considered view that the prosecution has been able to prove the charges levelled against the appellants. Both the courts below have analysed the evidence in the correct perspectives and in the face of the conclusions recorded on the different aspects of the imputations levelled against them, we are of the opinion that no interference is called for with the impugned judgment of conviction and sentence recorded against them.
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State of Orissa & Ors Vs. Sakhi Bewa (Dead) Through LRs | land of which the possession has been taken over. Therefore, before declaring the proceedings as having abated in view of Sections 3 and 4 of the Repeal Act, 1999, it has to be considered and decided whether possession of the surplus land/land has been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority or not. If it is found and held that the possession of the surplus land has been taken over, in that case, the proceedings shall not be declared as having been abated. 4.3 In the present case, in the impugned judgment and order, the Division Bench of the High Court has not at all considered and/or given any specific findings on the possession being taken over by the Tehsildar on 25.04.1988. There is no discussion at all on the aspect whether the possession taken over by the Tehsildar. It appears that solely on the ground that the payment of compensation has not been made and ad interim order was operating, the High Court has quashed and set aside the orders passed by the Competent Authority as well as the First Appellate Court. However, the High Court has not properly appreciated and considered the fact that the payment of compensation has nothing to do with the taking over of possession. Payment of compensation under the Act, 1976 and taking over the possession after the notification issued under Section 10(3)/10(5) of the Act, 1976, both are different and distinct. 4.4 Even assuming that the compensation has not been paid, in that case also, it cannot be presumed that the possession was not taken over. It appears that even the Division Bench of the High Court has also misread and misinterpreted the resolution/notification dated 24.07.2002. By the resolution/notification dated 24.07.2002, the following clarifications were issued by the State Government:- Thus as per the provisions laid down under the said Repeal Act, the following clarifications are issued. i) No compensation should be paid for land, possession of which has not been taken over by the Govt. after vesting U/s. 10(3) of the Urban Land (Ceiling & Regulation) Act, 1976. The Legal process initiated under the said Act will also be closed. ii) Where possession of land has been taken over and compensation has not been paid or partly paid, steps should be taken for payment of compensation. iii) Continuance of Govt. Control over the exempted land is no more required with effect from 5.4.2002. 4.5 As per the said clarification dated 24.07.2002 no compensation should be paid for land, possession of which has not been taken over by the Government after vesting U/s. 10(3) of the Urban Land (Ceiling & Regulation) Act, 1976 and the legal process initiated under the said Act is also to be closed. As per clause (ii) where the possession of the land has been taken over and the compensation has not been paid or partly paid, steps should be taken for payment of compensation. Therefore, even as per the said clarification dated 24.07.2002, where the possession of the land has been taken over and the compensation has not been paid or party paid, the steps were required to be taken for payment of compensation. It does not speak and/or clarify that if the compensation is not paid, the possession is presumed to be not taken and/or the legal process initiated under the Act, 1976 will be closed. If we consider paragraphs 7 and 8 of the impugned judgment and order, it appears that the High Court has misread and misinterpreted the clarification notification dated 24.07.2002 and even the resolution dated 05.04.2002. Though the resolution/clarification dated 24.07.2002 is in two parts reproduced hereinabove, the High Court has not at all considered and dealt with part (ii) of the clarification namely where the possession of the land has been taken over and the compensation has not been paid or partly paid, steps should be taken for payment of compensation. 4.6 Even the Division Bench of the High Court has also not considered the interim order dated 10.06.1994 in its true spirit. In the ex parte ad interim order dated 10.06.1994, the High Court has ordered that the authorities may take over possession of the vacant surplus land but will not change the nature or character of the land until further orders from the court. 4.7 At this stage, it is required to be noted that according to the State, the possession of the surplus land was already taken over on 25.04.1988 and all throughout it was the case on behalf of the State that the possession of surplus land was taken over on 25.04.1988. At this stage, it is also required to be noted that interim order dated 10.06.1994 was an ex parte ad interim order. The interim order, as worded, is not conclusive proof either way on the question of possession. Even in the impugned judgment and order, the Division Bench of the High Court has observed that since the Act, 1976 has been repealed, the land belonging to the original writ petitioners shall be given back to them. Meaning thereby, it can be said that even according to the High Court also the possession of the surplus land was not with the original writ petitioners. Whereas, this observation is not a finding on whether possession was taken. Be that as it may, as the High Court has not at all dealt with the petition on merits and has allowed the writ petition on the aforesaid grounds only, the impugned judgment and order passed by the High Court cannot be sustained and the same deserves to be quashed and set aside and the writ petition has to be remanded to the High Court to decide the same afresh and to consider the aspects stated hereinabove. The observations and views expressed by us are tentative and prima facie. The question whether possession was taken over being primordial must be examined with acuity and thoroughly. | 1[ds]4. Having heard the learned counsel appearing for the respective parties and having gone through and considered the impugned judgment and order passed by the Division Bench of the High Court and chronological dates and events narrated hereinabove, we are of the opinion that the impugned judgment and order passed by the High Court is unsustainable in law as well as on facts. It cannot be disputed that in the impugned judgment and order the High Court has not at all considered the merits of the case and has quashed and set aside the order passed by the Competent Authority dated 01.03.1984 and the order passed by the First Appellate Court – Board of Revenue dated 05.05.1987 solely on the ground that the Act, 1976 has been repealed and that the compensation for the surplus land has not been paid. The High Court has noted that in the resolution adopting the Repeal Act, 1999, it has been declared that no compensation should be paid for lands, possession of which has not been taken over by the State Government after vesting under Section 10(3) of the Act, 1976 and the legal process initiated under the said Act will also be closed.4.1 That it appears and though it is not clear from paragraph 8, which is the only paragraph, in which some observations are made by the High Court, the High Court has observed that as an interim order was operative and nothing has been averred regarding payment of compensation during pendency of the writ petition, no useful purpose would be served to remand the matter since the Act, 1976 has been repealed and consequently, the High Court has quashed and set aside the orders passed by the Competent Authority as well as the First Appellate Court. However, the High Court has not at all properly appreciated and considered Sections 3 and 4 of the Repeal Act, 1999.4.3 In the present case, in the impugned judgment and order, the Division Bench of the High Court has not at all considered and/or given any specific findings on the possession being taken over by the Tehsildar on 25.04.1988. There is no discussion at all on the aspect whether the possession taken over by the Tehsildar. It appears that solely on the ground that the payment of compensation has not been made and ad interim order was operating, the High Court has quashed and set aside the orders passed by the Competent Authority as well as the First Appellate Court. However, the High Court has not properly appreciated and considered the fact that the payment of compensation has nothing to do with the taking over of possession. Payment of compensation under the Act, 1976 and taking over the possession after the notification issued under Section 10(3)/10(5) of the Act, 1976, both are different and distinct.4.4 Even assuming that the compensation has not been paid, in that case also, it cannot be presumed that the possession was not taken over. It appears that even the Division Bench of the High Court has also misread and misinterpreted the resolution/notification dated 24.07.2002.4.5 As per the said clarification dated 24.07.2002 no compensation should be paid for land, possession of which has not been taken over by the Government after vesting U/s. 10(3) of the Urban Land (Ceiling & Regulation) Act, 1976 and the legal process initiated under the said Act is also to be closed. As per clause (ii) where the possession of the land has been taken over and the compensation has not been paid or partly paid, steps should be taken for payment of compensation. Therefore, even as per the said clarification dated 24.07.2002, where the possession of the land has been taken over and the compensation has not been paid or party paid, the steps were required to be taken for payment of compensation. It does not speak and/or clarify that if the compensation is not paid, the possession is presumed to be not taken and/or the legal process initiated under the Act, 1976 will be closed. If we consider paragraphs 7 and 8 of the impugned judgment and order, it appears that the High Court has misread and misinterpreted the clarification notification dated 24.07.2002 and even the resolution dated 05.04.2002. Though the resolution/clarification dated 24.07.2002 is in two parts reproduced hereinabove, the High Court has not at all considered and dealt with part (ii) of the clarification namely where the possession of the land has been taken over and the compensation has not been paid or partly paid, steps should be taken for payment of compensation.4.6 Even the Division Bench of the High Court has also not considered the interim order dated 10.06.1994 in its true spirit. In the ex parte ad interim order dated 10.06.1994, the High Court has ordered that the authorities may take over possession of the vacant surplus land but will not change the nature or character of the land until further orders from the court.4.7 At this stage, it is required to be noted that according to the State, the possession of the surplus land was already taken over on 25.04.1988 and all throughout it was the case on behalf of the State that the possession of surplus land was taken over on 25.04.1988. At this stage, it is also required to be noted that interim order dated 10.06.1994 was an ex parte ad interim order. The interim order, as worded, is not conclusive proof either way on the question of possession. Even in the impugned judgment and order, the Division Bench of the High Court has observed that since the Act, 1976 has been repealed, the land belonging to the original writ petitioners shall be given back to them. Meaning thereby, it can be said that even according to the High Court also the possession of the surplus land was not with the original writ petitioners. Whereas, this observation is not a finding on whether possession was taken. Be that as it may, as the High Court has not at all dealt with the petition on merits and has allowed the writ petition on the aforesaid grounds only, the impugned judgment and order passed by the High Court cannot be sustained and the same deserves to be quashed and set aside and the writ petition has to be remanded to the High Court to decide the same afresh and to consider the aspects stated hereinabove. The observations and views expressed by us are tentative and prima facie. The question whether possession was taken over being primordial must be examined with acuity and thoroughly. | 1 | 3,071 | 1,192 | ### 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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land of which the possession has been taken over. Therefore, before declaring the proceedings as having abated in view of Sections 3 and 4 of the Repeal Act, 1999, it has to be considered and decided whether possession of the surplus land/land has been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority or not. If it is found and held that the possession of the surplus land has been taken over, in that case, the proceedings shall not be declared as having been abated. 4.3 In the present case, in the impugned judgment and order, the Division Bench of the High Court has not at all considered and/or given any specific findings on the possession being taken over by the Tehsildar on 25.04.1988. There is no discussion at all on the aspect whether the possession taken over by the Tehsildar. It appears that solely on the ground that the payment of compensation has not been made and ad interim order was operating, the High Court has quashed and set aside the orders passed by the Competent Authority as well as the First Appellate Court. However, the High Court has not properly appreciated and considered the fact that the payment of compensation has nothing to do with the taking over of possession. Payment of compensation under the Act, 1976 and taking over the possession after the notification issued under Section 10(3)/10(5) of the Act, 1976, both are different and distinct. 4.4 Even assuming that the compensation has not been paid, in that case also, it cannot be presumed that the possession was not taken over. It appears that even the Division Bench of the High Court has also misread and misinterpreted the resolution/notification dated 24.07.2002. By the resolution/notification dated 24.07.2002, the following clarifications were issued by the State Government:- Thus as per the provisions laid down under the said Repeal Act, the following clarifications are issued. i) No compensation should be paid for land, possession of which has not been taken over by the Govt. after vesting U/s. 10(3) of the Urban Land (Ceiling & Regulation) Act, 1976. The Legal process initiated under the said Act will also be closed. ii) Where possession of land has been taken over and compensation has not been paid or partly paid, steps should be taken for payment of compensation. iii) Continuance of Govt. Control over the exempted land is no more required with effect from 5.4.2002. 4.5 As per the said clarification dated 24.07.2002 no compensation should be paid for land, possession of which has not been taken over by the Government after vesting U/s. 10(3) of the Urban Land (Ceiling & Regulation) Act, 1976 and the legal process initiated under the said Act is also to be closed. As per clause (ii) where the possession of the land has been taken over and the compensation has not been paid or partly paid, steps should be taken for payment of compensation. Therefore, even as per the said clarification dated 24.07.2002, where the possession of the land has been taken over and the compensation has not been paid or party paid, the steps were required to be taken for payment of compensation. It does not speak and/or clarify that if the compensation is not paid, the possession is presumed to be not taken and/or the legal process initiated under the Act, 1976 will be closed. If we consider paragraphs 7 and 8 of the impugned judgment and order, it appears that the High Court has misread and misinterpreted the clarification notification dated 24.07.2002 and even the resolution dated 05.04.2002. Though the resolution/clarification dated 24.07.2002 is in two parts reproduced hereinabove, the High Court has not at all considered and dealt with part (ii) of the clarification namely where the possession of the land has been taken over and the compensation has not been paid or partly paid, steps should be taken for payment of compensation. 4.6 Even the Division Bench of the High Court has also not considered the interim order dated 10.06.1994 in its true spirit. In the ex parte ad interim order dated 10.06.1994, the High Court has ordered that the authorities may take over possession of the vacant surplus land but will not change the nature or character of the land until further orders from the court. 4.7 At this stage, it is required to be noted that according to the State, the possession of the surplus land was already taken over on 25.04.1988 and all throughout it was the case on behalf of the State that the possession of surplus land was taken over on 25.04.1988. At this stage, it is also required to be noted that interim order dated 10.06.1994 was an ex parte ad interim order. The interim order, as worded, is not conclusive proof either way on the question of possession. Even in the impugned judgment and order, the Division Bench of the High Court has observed that since the Act, 1976 has been repealed, the land belonging to the original writ petitioners shall be given back to them. Meaning thereby, it can be said that even according to the High Court also the possession of the surplus land was not with the original writ petitioners. Whereas, this observation is not a finding on whether possession was taken. Be that as it may, as the High Court has not at all dealt with the petition on merits and has allowed the writ petition on the aforesaid grounds only, the impugned judgment and order passed by the High Court cannot be sustained and the same deserves to be quashed and set aside and the writ petition has to be remanded to the High Court to decide the same afresh and to consider the aspects stated hereinabove. The observations and views expressed by us are tentative and prima facie. The question whether possession was taken over being primordial must be examined with acuity and thoroughly.
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order passed by the Competent Authority dated 01.03.1984 and the order passed by the First Appellate Court – Board of Revenue dated 05.05.1987 solely on the ground that the Act, 1976 has been repealed and that the compensation for the surplus land has not been paid. The High Court has noted that in the resolution adopting the Repeal Act, 1999, it has been declared that no compensation should be paid for lands, possession of which has not been taken over by the State Government after vesting under Section 10(3) of the Act, 1976 and the legal process initiated under the said Act will also be closed.4.1 That it appears and though it is not clear from paragraph 8, which is the only paragraph, in which some observations are made by the High Court, the High Court has observed that as an interim order was operative and nothing has been averred regarding payment of compensation during pendency of the writ petition, no useful purpose would be served to remand the matter since the Act, 1976 has been repealed and consequently, the High Court has quashed and set aside the orders passed by the Competent Authority as well as the First Appellate Court. However, the High Court has not at all properly appreciated and considered Sections 3 and 4 of the Repeal Act, 1999.4.3 In the present case, in the impugned judgment and order, the Division Bench of the High Court has not at all considered and/or given any specific findings on the possession being taken over by the Tehsildar on 25.04.1988. There is no discussion at all on the aspect whether the possession taken over by the Tehsildar. It appears that solely on the ground that the payment of compensation has not been made and ad interim order was operating, the High Court has quashed and set aside the orders passed by the Competent Authority as well as the First Appellate Court. However, the High Court has not properly appreciated and considered the fact that the payment of compensation has nothing to do with the taking over of possession. Payment of compensation under the Act, 1976 and taking over the possession after the notification issued under Section 10(3)/10(5) of the Act, 1976, both are different and distinct.4.4 Even assuming that the compensation has not been paid, in that case also, it cannot be presumed that the possession was not taken over. It appears that even the Division Bench of the High Court has also misread and misinterpreted the resolution/notification dated 24.07.2002.4.5 As per the said clarification dated 24.07.2002 no compensation should be paid for land, possession of which has not been taken over by the Government after vesting U/s. 10(3) of the Urban Land (Ceiling & Regulation) Act, 1976 and the legal process initiated under the said Act is also to be closed. As per clause (ii) where the possession of the land has been taken over and the compensation has not been paid or partly paid, steps should be taken for payment of compensation. Therefore, even as per the said clarification dated 24.07.2002, where the possession of the land has been taken over and the compensation has not been paid or party paid, the steps were required to be taken for payment of compensation. It does not speak and/or clarify that if the compensation is not paid, the possession is presumed to be not taken and/or the legal process initiated under the Act, 1976 will be closed. If we consider paragraphs 7 and 8 of the impugned judgment and order, it appears that the High Court has misread and misinterpreted the clarification notification dated 24.07.2002 and even the resolution dated 05.04.2002. Though the resolution/clarification dated 24.07.2002 is in two parts reproduced hereinabove, the High Court has not at all considered and dealt with part (ii) of the clarification namely where the possession of the land has been taken over and the compensation has not been paid or partly paid, steps should be taken for payment of compensation.4.6 Even the Division Bench of the High Court has also not considered the interim order dated 10.06.1994 in its true spirit. In the ex parte ad interim order dated 10.06.1994, the High Court has ordered that the authorities may take over possession of the vacant surplus land but will not change the nature or character of the land until further orders from the court.4.7 At this stage, it is required to be noted that according to the State, the possession of the surplus land was already taken over on 25.04.1988 and all throughout it was the case on behalf of the State that the possession of surplus land was taken over on 25.04.1988. At this stage, it is also required to be noted that interim order dated 10.06.1994 was an ex parte ad interim order. The interim order, as worded, is not conclusive proof either way on the question of possession. Even in the impugned judgment and order, the Division Bench of the High Court has observed that since the Act, 1976 has been repealed, the land belonging to the original writ petitioners shall be given back to them. Meaning thereby, it can be said that even according to the High Court also the possession of the surplus land was not with the original writ petitioners. Whereas, this observation is not a finding on whether possession was taken. Be that as it may, as the High Court has not at all dealt with the petition on merits and has allowed the writ petition on the aforesaid grounds only, the impugned judgment and order passed by the High Court cannot be sustained and the same deserves to be quashed and set aside and the writ petition has to be remanded to the High Court to decide the same afresh and to consider the aspects stated hereinabove. The observations and views expressed by us are tentative and prima facie. The question whether possession was taken over being primordial must be examined with acuity and thoroughly.
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Parvej Aktar Vs. Union Of India | alike. In other words, equals must be treated alike, in like circumstances and conditions. Undoubtedly, the handloom sector forms a distinguishable class separated from powerloom sector or mills sector. The reservation of certain articles for exclusive production in the handloom sector has the objective of protecting the handloom sector against unequal and powerful competition by the mechanised powerloom/mills sector. At the same time, it is also necessary to ensure continued production coupled with sustained employment to the handloom weavers, largely concentrated in the rural areas. This is also in accord with the Governments declared policy of supporting handloom sector due to its large employment potential. The classification, hence, has a rational nexus with the objective of the Act.58. The handlooms are operated manually, the number of persons employed is many times more than powerloom for production of similar quantities of cloth. The reservation of articles for handlooms does not pose any serious threat to powerloom. It has been proved by the fact that even though the handlooms reservation orders have been on the statute book since 1950, the powerlooms have continued to proliferate and there is no reason to believe that any of these looms are likely to be closed due to the Reservation Order. The powerloom owners are only required to devesify their line of production so that they do not produce cloth reserved for handlooms. As already pointed out the reservation for handlooms has continued since 1950 for the protection of rural handloom artisans and their continued employment in the industry. Since the Government policy has always been to create more employment particularly in rural areas, it will be unthinkable to imagine the social problems that will be created if the employment of millions of handloom weavers is taken away by allowing powerlooms to produce all items without any reservation. Handlooms and handicrafts are the only traditional cottage industries which provide maximum employment in the rural country-side.Hence, we reject this point as well.59. It has already been noted from the observations of the high-powered Study Team under the Chairmanship of Mr. B. Sivaraman as to how every new powerloom will put out of action six handlooms in the country. A handloom actually is a family industry and not an individuals field alone.60. This means the families of the poor weavers are ruined by encouraging powerloom. It may be that the cost of production in the powerlooms sector is less but if it is the object of the Government to encourage handloom for continued employment of handloom weavers in rural areas, certainly, nothing worthwhile can be said against the impugned reservation. Besides, even under the Notification issued by the Textile Commissioner on 15-4-77 many of the items stated as being produced by the petitioner were reserved for the handloom sector. These items are sarees with borders, lungies, chaddars, bed sheets, bed covers, counter panes, low read pick cloth, table clothes, napkins, duster, towels and cotton crepe fabrics. If violating this order, the petitioner has been manufacturing these items which are specifically reserved for handlooms, it cannot be allowed to continue to indulge in such violation any further. Thus, we reject the argument complaining of violation of Article 14 of the Constitution.61. Sub-section (1) of Section 3 of the impugned Act states that the order specifying the articles for exclusive production of handloom could be issued for the protection and development of handloom industry from time to time. Therefore, the reservation is not for all time to come. It could be revised periodically. It is with this object in view, Rule 3(5) of the Handlooms (Reservation of Articles for Production) Rules, 1986 states as follows : "3(5): The Advisory Committees may meet at such places and at such times as may be determined by the Chairman :Provided that the Advisory Committee shall meet at least once a year to review the list of reserved articles." 62. Therefore, at least once in a year there could be a meeting of the Advisory Committee. From the counter affidavit it is clear that in order to have a deeper study of the problems relating to reservation of production by handloom three sub-committees were constituted : (i) cotton and art silk fabrics,(ii) pure silk fabrics; and(iii) woollen and tribal fabrics. 63. In order to gain first-hand knowledge of the poduction of these fabrics the sub-committees made field visits. While touring different centres the sub-committees invariably involved local Government representatives.64. It is averred in the counter affidavit that the sub-committee on silk visited powerloom weaving centres in Bangalore and Varanasi, while the sub- committee on wool during their visits to a number of places, including Panipat, Ludhiana, Kulu, Imphal and Srinagar had occasion to study the problems of the woollen powerloom industry alongwith those of the handloom industry. The Advisory Committee on cotton met the representatives of powerlooms, who placed their views before the sub-committee during its sittings at Madras and Bangalore. Thus, it will be amply clear from what has been stated above that the interest of the powerloom sector has been taken into account and powerlooms were represented albeit indirectly on the Advisory Committee.65. Moreover, the sub-committees formed by the earlier Advisory Committee had visited many a places in the country and discussed the matter with officers of the State Government and met persons representing different textile sectors. Apart from the reports received from the sub-committees, the representations received by the Government from various textile interests were duly considered by the Advisory Committee before making their recommendations. It is, therefore, incorrect to say that proper opportunity was not provided to the petitioners for making representations.66. It is important to note that in the Advisory Committee the representatives from powerloom sector, mills sector and powerloom silk sector have been specifically included. Therefore, it is meaningless to state that no opportunity was afforded to powerloom sector and that under Section 3of the impugned Act regard is had only to the handloom industry while under Clause (20) an overall view of all industries could be taken. | 0[ds]42. Therefore, where the Cotton Textile Control Order deals with the productions while the impugned Act is an Act which deals entirely with handloom. The order issued under Section 3of the Act is only for protection and development of handloom industry. There is no question of both the Cotton Textile Control Order and the impugned Order operating in the same field.Hence, this argument is rejected.43. The next argument is that Clause (20) of the Cotton Textile Control Order enables the Textile Commissioner to have an over all view while under Section 3of the impugned Act regard is to be had only to the handloom industry.As already seen, the objects of these two orders are different. Therefore, the order under Section 3(1) of the impugned Act (quoted above) does not run counter to Clause (20) of Cotton Textile Control Order.Accordingly, this argument isThis argument, in our opinion, proceeds on a misconception. There is no question of monopoly created in favour of handloom industry. Certain kinds of textiles are reserved to the handloom industry. Still there are number of items available for powerloom owners which they can manufacture. The items of textiles generally manufactured in the mill and powerloom sectors have been left out from reserved items. Only those items which have traditionally been manufactured on handlooms have been reserved for this sector. As a matter of fact, the reservation orders in favour of handloom have been on the statute book since 1950. But this has not deterred the growth of powerloom sector in the last three decades. Recently when the powerloom started producing the items which were traditionally being manufactured on handlooms, that caused a serious inroad into the handloom industry. The result was an unequal competition for the handloom sector. If, as rightly pointed out in the counter affidavit of the Union of India, handloom industry is the biggest cottage industry in the country and is next only to agricultural sector in providing rural employment, certainly, the accusation that the impugned order had created a monopoly in favour of handloom industry is totally baseless. In this connection, the estimates of 1977-78 6th Lok Sabha in its report on powerloom industry made the following observations and it is worthwhile to extract themhas, however, to be ensured that this growth of powerloom industry should not be at the cost of handloom industry otherwise it will lead to greater rural unemployment and problem of large scale migration of rural population to the industrial areas in search of employment. The Committee, therefore, feels that the growth of the powerloom industry should be regulated in such a way that it does not harm the interests of the handloom industry. It would be ensured that powerloom industry does not become a "benami" of the mill sector but is really developed by the conversion of handlooms into powerloom by the handloom weavers themselves. The Committee, therefore, recommend that stringent measures may be taken to ensure that powerloom sector observe the reservations made by the handloom sector and stringent action should be taken for any violation of these orders. Simultaneously, the powerloom sector should be encouraged to produce those varieties of cloth which are not being produced by the handloom sector. The Committee have already in Part I of their report, recommended the formulation of an integrated textile policy assigning role to the various sectors. The Committee hope that while defining the role of the powerloom sector, the above factors will be kept in view by the Government.Thus, it will be clear that the reservation orders are for the continued employment of the handloom industry and are in the larger public interest.50. Even factually, the allegation of monopoly is incorrect. The stand in the counter affidavit is as followsis submitted that the items which are generally manufactured in the powerloom sector have not been reserved for handloom sector at the cost of powerlooms or mill sector. The total production of textile sector at the end of Sixth Plan (1984-85) was 11, 956 million mts. of which the share of handlooms was 3314. At the end of Seventh Plan (1989-90) the total production in textile is estimated at 14500 ml. mts. of which the share of handlooms will be only 4600. These estimated targets indicate that there is sufficient scope for all the sectors including the unorganised powerloom sector to grow during the Seventh Five Year Plan. The differences between the handloom and powerlooms have been defined in the Act itself. The basic difference being that the handlooms are manually operated while the powerlooms are run with the motive force of power.The protection has been given by the Government to handloom weavers because the livelihood of handloom weavers is threatened due to the production of all types of items and varieties by the powerloom industry. It is common knowledge that the handloom weavers are economically very poor and will have no alternative employment in the rural areas unless protected through reservation of varieties for them. So poor is the weaver that he could well say in the words of Karl Marx :"Half a century on my back and still a pauper".52. Therefore, the contention that there is a total prohibition, is untenable and the case relied on by Mr. Krishnamani, learned counsel, namely, Rustom Cavasjee Cooper v. Union of India, (1970) 3 SCR 530 : (AIR 1970 SC 564 ) has no relevance.53. No doubt, there are restrictions under the impugned order but the question would be whether they are reasonable. The Act, as seen above, has come to be enacted for the protection of the interests of the handloom weavers, mostly concentrated in rurual areas. They are pitted against powerful sector, namely, the mills and the powerloom. As such, they face unequal competition. The restrictions are not only reasonable but also fully justified. Further, the objectives sought to be achieved by way of these reservations should derive support from Article 43 of the Constituion which reads as followsLiving wage, etc., for workers -The State shall endeavour to secure, by suitable legislation or economic organisation or in any other way, to all workers, agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities and, in particular, the State shall endeavour to promote cottage industries on an individual or co-operative basis in rural areas.The said article ordains that the State shall endeavour to promote cottage industries on individual or co-operative basis in rural areas. It is a welcome measure. We can usefully refer to Orient Weaving Mills v. Union of India, AIR 1963 SC 98 at 103Directive Principles of the Constitution, contained in Part IV, lay down the policies and objectives to be achieved, for promoting the welfare of the people. In the context of the present controversy, the following words of Article 43 are particularly apposite :". . . . . . . and in particular, the State shall endeavour to promote cottage industries on an individual or co-operative basis in ruralhas rightly been pointed out in affidavit filed on behalf of the respondents 1-4 that the exemption granted by the impugned notifications is meant primarily for the protection of petty producers of cotton fabrics not owning more than four powerlooms, from unreasonable competition by big producers, like the petitioner Company. The State has, therefore, made a valid classification between goods produced in big establishments and similar goods produced by small powerloom weavers in the mofussil, who are usually ignorant, illiterate and poor and suffer from handicaps to which big establishments like the petitioner company are not subject.Equally, Article 46 inter alia requires the State to promote with special care the educational and economical interests of the weaker sections of the people. Therefore, these restrictions, can easily be sustained as reasonable since it is in furtherance of the objectives laid down in the directive principles.56. In view of what we have stated above, even if, these restrictions result in the total exclusion of the powerloom sector that could be upheld as reasonable. In Narendra Kumars case (supra) (1960 (2) SCR 375 ) : (AIR 1960 SC 430 ) it was held thusthe word "restriction" in Articles 19(5) and 19(6) of the Constitution includes cases of "prohibition" also; that where a restriction reaches the stage of total restraint of rights special care has to be taken by the Court to see that the test of reasonableness is satisfied by considering the question in the background of the facts and circumstances under which the order was made, taking into account the nature of the evil that was sought to be remedied by such law, the ratio of the harm caused to individual citizens by the proposed remedy, the beneficial effect reasonably expected to result to the general public, and whether the restraint caused by the law was more than was necessary in the interests of the general public.On the point of violation of Article 14, a reasonable classification is permissible under the equality clause. Of course, the classification made should be based on intelligible differentia. Further, there should be a nexus in such differentia with the objects sought to be achieved by the particular law. Article 14 requires that all persons subject to a legislation must be treated alike. In other words, equals must be treated alike, in like circumstances and conditions. Undoubtedly, the handloom sector forms a distinguishable class separated from powerloom sector or mills sector. The reservation of certain articles for exclusive production in the handloom sector has the objective of protecting the handloom sector against unequal and powerful competition by the mechanised powerloom/mills sector. At the same time, it is also necessary to ensure continued production coupled with sustained employment to the handloom weavers, largely concentrated in the rural areas. This is also in accord with the Governments declared policy of supporting handloom sector due to its large employment potential. The classification, hence, has a rational nexus with the objective of the Act.58. The handlooms are operated manually, the number of persons employed is many times more than powerloom for production of similar quantities of cloth. The reservation of articles for handlooms does not pose any serious threat to powerloom. It has been proved by the fact that even though the handlooms reservation orders have been on the statute book since 1950, the powerlooms have continued to proliferate and there is no reason to believe that any of these looms are likely to be closed due to the Reservation Order. The powerloom owners are only required to devesify their line of production so that they do not produce cloth reserved for handlooms. As already pointed out the reservation for handlooms has continued since 1950 for the protection of rural handloom artisans and their continued employment in the industry. Since the Government policy has always been to create more employment particularly in rural areas, it will be unthinkable to imagine the social problems that will be created if the employment of millions of handloom weavers is taken away by allowing powerlooms to produce all items without any reservation. Handlooms and handicrafts are the only traditional cottage industries which provide maximum employment in the rural country-side.Hence, we reject this point as well.59. It has already been noted from the observations of the high-powered Study Team under the Chairmanship of Mr. B. Sivaraman as to how every new powerloom will put out of action six handlooms in the country. A handloom actually is a family industry and not an individuals field alone.60. This means the families of the poor weavers are ruined by encouraging powerloom. It may be that the cost of production in the powerlooms sector is less but if it is the object of the Government to encourage handloom for continued employment of handloom weavers in rural areas, certainly, nothing worthwhile can be said against the impugned reservation. Besides, even under the Notification issued by the Textile Commissioner on 15-4-77 many of the items stated as being produced by the petitioner were reserved for the handloom sector. These items are sarees with borders, lungies, chaddars, bed sheets, bed covers, counter panes, low read pick cloth, table clothes, napkins, duster, towels and cotton crepe fabrics. If violating this order, the petitioner has been manufacturing these items which are specifically reserved for handlooms, it cannot be allowed to continue to indulge in such violation any further. Thus, we reject the argument complaining of violation of Article 14 of the Constitution.61. Sub-section (1) of Section 3 of the impugned Act states that the order specifying the articles for exclusive production of handloom could be issued for the protection and development of handloom industry from time to time. Therefore, the reservation is not for all time to come. It could be revised periodically. It is with this object in view, Rule 3(5) of the Handlooms (Reservation of Articles for Production) Rules, 1986 states as followsThe Advisory Committees may meet at such places and at such times as may be determined by the Chairman :Provided that the Advisory Committee shall meet at least once a year to review the list of reserved articles.Therefore, at least once in a year there could be a meeting of the Advisory Committee. From the counter affidavit it is clear that in order to have a deeper study of the problems relating to reservation of production by handloom three sub-committees were constitutedcotton and art silk fabrics,(ii) pure silk fabrics; and(iii) woollen and tribal fabrics.In order to gain first-hand knowledge of the poduction of these fabrics the sub-committees made field visits. While touring different centres the sub-committees invariably involved local Government representatives.64. It is averred in the counter affidavit that the sub-committee on silk visited powerloom weaving centres in Bangalore and Varanasi, while the sub- committee on wool during their visits to a number of places, including Panipat, Ludhiana, Kulu, Imphal and Srinagar had occasion to study the problems of the woollen powerloom industry alongwith those of the handloom industry. The Advisory Committee on cotton met the representatives of powerlooms, who placed their views before the sub-committee during its sittings at Madras and Bangalore. Thus, it will be amply clear from what has been stated above that the interest of the powerloom sector has been taken into account and powerlooms were represented albeit indirectly on the Advisory Committee.65. Moreover, the sub-committees formed by the earlier Advisory Committee had visited many a places in the country and discussed the matter with officers of the State Government and met persons representing different textile sectors. Apart from the reports received from the sub-committees, the representations received by the Government from various textile interests were duly considered by the Advisory Committee before making their recommendations. It is, therefore, incorrect to say that proper opportunity was not provided to the petitioners for making representations.66. It is important to note that in the Advisory Committee the representatives from powerloom sector, mills sector and powerloom silk sector have been specifically included. Therefore, it is meaningless to state that no opportunity was afforded to powerloom sector and that under Section 3of the impugned Act regard is had only to the handloom industry while under Clause (20) an overall view of all industries could be taken. | 0 | 8,957 | 2,804 | ### 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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alike. In other words, equals must be treated alike, in like circumstances and conditions. Undoubtedly, the handloom sector forms a distinguishable class separated from powerloom sector or mills sector. The reservation of certain articles for exclusive production in the handloom sector has the objective of protecting the handloom sector against unequal and powerful competition by the mechanised powerloom/mills sector. At the same time, it is also necessary to ensure continued production coupled with sustained employment to the handloom weavers, largely concentrated in the rural areas. This is also in accord with the Governments declared policy of supporting handloom sector due to its large employment potential. The classification, hence, has a rational nexus with the objective of the Act.58. The handlooms are operated manually, the number of persons employed is many times more than powerloom for production of similar quantities of cloth. The reservation of articles for handlooms does not pose any serious threat to powerloom. It has been proved by the fact that even though the handlooms reservation orders have been on the statute book since 1950, the powerlooms have continued to proliferate and there is no reason to believe that any of these looms are likely to be closed due to the Reservation Order. The powerloom owners are only required to devesify their line of production so that they do not produce cloth reserved for handlooms. As already pointed out the reservation for handlooms has continued since 1950 for the protection of rural handloom artisans and their continued employment in the industry. Since the Government policy has always been to create more employment particularly in rural areas, it will be unthinkable to imagine the social problems that will be created if the employment of millions of handloom weavers is taken away by allowing powerlooms to produce all items without any reservation. Handlooms and handicrafts are the only traditional cottage industries which provide maximum employment in the rural country-side.Hence, we reject this point as well.59. It has already been noted from the observations of the high-powered Study Team under the Chairmanship of Mr. B. Sivaraman as to how every new powerloom will put out of action six handlooms in the country. A handloom actually is a family industry and not an individuals field alone.60. This means the families of the poor weavers are ruined by encouraging powerloom. It may be that the cost of production in the powerlooms sector is less but if it is the object of the Government to encourage handloom for continued employment of handloom weavers in rural areas, certainly, nothing worthwhile can be said against the impugned reservation. Besides, even under the Notification issued by the Textile Commissioner on 15-4-77 many of the items stated as being produced by the petitioner were reserved for the handloom sector. These items are sarees with borders, lungies, chaddars, bed sheets, bed covers, counter panes, low read pick cloth, table clothes, napkins, duster, towels and cotton crepe fabrics. If violating this order, the petitioner has been manufacturing these items which are specifically reserved for handlooms, it cannot be allowed to continue to indulge in such violation any further. Thus, we reject the argument complaining of violation of Article 14 of the Constitution.61. Sub-section (1) of Section 3 of the impugned Act states that the order specifying the articles for exclusive production of handloom could be issued for the protection and development of handloom industry from time to time. Therefore, the reservation is not for all time to come. It could be revised periodically. It is with this object in view, Rule 3(5) of the Handlooms (Reservation of Articles for Production) Rules, 1986 states as follows : "3(5): The Advisory Committees may meet at such places and at such times as may be determined by the Chairman :Provided that the Advisory Committee shall meet at least once a year to review the list of reserved articles." 62. Therefore, at least once in a year there could be a meeting of the Advisory Committee. From the counter affidavit it is clear that in order to have a deeper study of the problems relating to reservation of production by handloom three sub-committees were constituted : (i) cotton and art silk fabrics,(ii) pure silk fabrics; and(iii) woollen and tribal fabrics. 63. In order to gain first-hand knowledge of the poduction of these fabrics the sub-committees made field visits. While touring different centres the sub-committees invariably involved local Government representatives.64. It is averred in the counter affidavit that the sub-committee on silk visited powerloom weaving centres in Bangalore and Varanasi, while the sub- committee on wool during their visits to a number of places, including Panipat, Ludhiana, Kulu, Imphal and Srinagar had occasion to study the problems of the woollen powerloom industry alongwith those of the handloom industry. The Advisory Committee on cotton met the representatives of powerlooms, who placed their views before the sub-committee during its sittings at Madras and Bangalore. Thus, it will be amply clear from what has been stated above that the interest of the powerloom sector has been taken into account and powerlooms were represented albeit indirectly on the Advisory Committee.65. Moreover, the sub-committees formed by the earlier Advisory Committee had visited many a places in the country and discussed the matter with officers of the State Government and met persons representing different textile sectors. Apart from the reports received from the sub-committees, the representations received by the Government from various textile interests were duly considered by the Advisory Committee before making their recommendations. It is, therefore, incorrect to say that proper opportunity was not provided to the petitioners for making representations.66. It is important to note that in the Advisory Committee the representatives from powerloom sector, mills sector and powerloom silk sector have been specifically included. Therefore, it is meaningless to state that no opportunity was afforded to powerloom sector and that under Section 3of the impugned Act regard is had only to the handloom industry while under Clause (20) an overall view of all industries could be taken.
### Response:
0
### Explanation:
that all persons subject to a legislation must be treated alike. In other words, equals must be treated alike, in like circumstances and conditions. Undoubtedly, the handloom sector forms a distinguishable class separated from powerloom sector or mills sector. The reservation of certain articles for exclusive production in the handloom sector has the objective of protecting the handloom sector against unequal and powerful competition by the mechanised powerloom/mills sector. At the same time, it is also necessary to ensure continued production coupled with sustained employment to the handloom weavers, largely concentrated in the rural areas. This is also in accord with the Governments declared policy of supporting handloom sector due to its large employment potential. The classification, hence, has a rational nexus with the objective of the Act.58. The handlooms are operated manually, the number of persons employed is many times more than powerloom for production of similar quantities of cloth. The reservation of articles for handlooms does not pose any serious threat to powerloom. It has been proved by the fact that even though the handlooms reservation orders have been on the statute book since 1950, the powerlooms have continued to proliferate and there is no reason to believe that any of these looms are likely to be closed due to the Reservation Order. The powerloom owners are only required to devesify their line of production so that they do not produce cloth reserved for handlooms. As already pointed out the reservation for handlooms has continued since 1950 for the protection of rural handloom artisans and their continued employment in the industry. Since the Government policy has always been to create more employment particularly in rural areas, it will be unthinkable to imagine the social problems that will be created if the employment of millions of handloom weavers is taken away by allowing powerlooms to produce all items without any reservation. Handlooms and handicrafts are the only traditional cottage industries which provide maximum employment in the rural country-side.Hence, we reject this point as well.59. It has already been noted from the observations of the high-powered Study Team under the Chairmanship of Mr. B. Sivaraman as to how every new powerloom will put out of action six handlooms in the country. A handloom actually is a family industry and not an individuals field alone.60. This means the families of the poor weavers are ruined by encouraging powerloom. It may be that the cost of production in the powerlooms sector is less but if it is the object of the Government to encourage handloom for continued employment of handloom weavers in rural areas, certainly, nothing worthwhile can be said against the impugned reservation. Besides, even under the Notification issued by the Textile Commissioner on 15-4-77 many of the items stated as being produced by the petitioner were reserved for the handloom sector. These items are sarees with borders, lungies, chaddars, bed sheets, bed covers, counter panes, low read pick cloth, table clothes, napkins, duster, towels and cotton crepe fabrics. If violating this order, the petitioner has been manufacturing these items which are specifically reserved for handlooms, it cannot be allowed to continue to indulge in such violation any further. Thus, we reject the argument complaining of violation of Article 14 of the Constitution.61. Sub-section (1) of Section 3 of the impugned Act states that the order specifying the articles for exclusive production of handloom could be issued for the protection and development of handloom industry from time to time. Therefore, the reservation is not for all time to come. It could be revised periodically. It is with this object in view, Rule 3(5) of the Handlooms (Reservation of Articles for Production) Rules, 1986 states as followsThe Advisory Committees may meet at such places and at such times as may be determined by the Chairman :Provided that the Advisory Committee shall meet at least once a year to review the list of reserved articles.Therefore, at least once in a year there could be a meeting of the Advisory Committee. From the counter affidavit it is clear that in order to have a deeper study of the problems relating to reservation of production by handloom three sub-committees were constitutedcotton and art silk fabrics,(ii) pure silk fabrics; and(iii) woollen and tribal fabrics.In order to gain first-hand knowledge of the poduction of these fabrics the sub-committees made field visits. While touring different centres the sub-committees invariably involved local Government representatives.64. It is averred in the counter affidavit that the sub-committee on silk visited powerloom weaving centres in Bangalore and Varanasi, while the sub- committee on wool during their visits to a number of places, including Panipat, Ludhiana, Kulu, Imphal and Srinagar had occasion to study the problems of the woollen powerloom industry alongwith those of the handloom industry. The Advisory Committee on cotton met the representatives of powerlooms, who placed their views before the sub-committee during its sittings at Madras and Bangalore. Thus, it will be amply clear from what has been stated above that the interest of the powerloom sector has been taken into account and powerlooms were represented albeit indirectly on the Advisory Committee.65. Moreover, the sub-committees formed by the earlier Advisory Committee had visited many a places in the country and discussed the matter with officers of the State Government and met persons representing different textile sectors. Apart from the reports received from the sub-committees, the representations received by the Government from various textile interests were duly considered by the Advisory Committee before making their recommendations. It is, therefore, incorrect to say that proper opportunity was not provided to the petitioners for making representations.66. It is important to note that in the Advisory Committee the representatives from powerloom sector, mills sector and powerloom silk sector have been specifically included. Therefore, it is meaningless to state that no opportunity was afforded to powerloom sector and that under Section 3of the impugned Act regard is had only to the handloom industry while under Clause (20) an overall view of all industries could be taken.
|
Commissioner Central Excise, Mumbai-III Vs. M/s. EMCO Ltd | 6 SCC 52 ), the Court took note of few more decisions, including the case of Escorts JCB Ltd., and reiterated the aforesaid principles but at the same time also emphasizing that the place of removal depends on the facts of each case.14) In a recent decision of this Court in Commissioner, Customs and Central Excise, Aurangabad v. M/s. Roofit Industries Ltd. ((2015) 5 SCALE 470 ), the position in law was summarized in the following manner: “12) The principle of law, thus, is crystal clear. It is to be seen as to whether as to at what point of time sale is effected namely whether it is on factory gate or at a later point of time i.e. when the delivery of the goods is effected to the buyer at his premises. This aspect is to be seen in the light of provisions of the Sale of Goods Act by applying the same to the facts of each case to determine as to when the ownership in the goods is transferred from the seller to the buyer. The charges which are to be added have put up to the stage of the transfer of that ownership inasmuch as once the ownership in goods stands transferred to the buyer, any expenditure incurred thereafter has to be on buyers account and cannot be a component which would be included while ascertaining the valuation of the goods manufactured by the buyer. That is the plain meaning which has to be assigned to Section 4 read with Valuation Rules.” 15) Having stated the legal position, we now revert to the facts of the present case.16) The Commissioner, Central Excise while deciding that the transportation charges as well as transit insurance charges are to be included for fixing the transaction value. The order reveals that the Commissioner had scanned through the agreements entered into between the assessee and with various customers and other documents on the basis of which the Commissioner concluded that the property in goods was passed on to the customers only at the destination. According to him, there was a specific condition in the contracts that the goods will be dispatched from freight pre-paid by road and up to the destination of the customers. It was also stated that material should be dispatched duly insured by the assessee up to the customers destination and the cost towards obtaining insurance was included in the price. These contracts further contain a clear stipulation that in case of any damage to the goods during transit, the supplier will lodge the claim and obtain compensation from the insurance company. So much so, one Deputy Manager of the assessee, viz. Shri D.K. Bhattacharya in his statement, recorded under Section 14 of the Act, had specifically stated that “the responsibility of the goods lies on M/s. Emco till the delivery of the said goods to the customers premises and, therefore, freight incurred and transit insurance charges were recovered from the customers......for covering the transit risk they had taken out transit insurance policy and whenever there was a loss or damage to goods M/s. Emco claims the same from the insurance company.....the possession of the goods is transferred only at the premises of the buyers/customers”. The Commissioner also noted that the aforesaid statement was even confirmed by the General Manager of the assessee.17) The Tribunal did not bother to look into any of the aforesaid aspects and/or discussed the same. In a cryptic non-reasoned order, the Tribunal allowed the appeal. To be precise, the following order is passed: “Appellants were issued a notice proposing to levy duty in the value of amount of freight and transit insurance recovered by them but the same suppressed from the department as it appears from page 10G the show cause notice.2. It was confirmed after hearing both sides, it is found that the issue is well settled in favouring the assessee by the decision in the case of Associated Strips Ltd. [2002 (143) ELT 131-Trib.) which has been approved by the Apex Court in the case of Escorts JCB Ltd. Vs. Collector of Central Excise [2002 (146) ELT 31 (SC)]. Being bound by the same, this order impugned cannot be restrained and is to be set aside and appeal allowed.” 18) The perfunctory manner in which the appeal of the assessee is allowed, cannot be countenanced. If the Tribunal was confirming the decision of the Authority below, may be detailed discussion was not required as the reasons given in detail could be found in the order appealed against, though even in such a case brief reasons are to be given by the Tribunal, in particular, to meet the arguments which are advanced by the appellant while challenging such an order. However, in the instant case, we find that there is a detailed discussion in the order of the Commissioner on the facts of the case. Those facts are not adverted to or dealt with. The decision of the Commissioner is overruled with single observation that the case is covered by the judgment in Escorts JCB Ltd., without discussing as to how it was so covered. This is notwithstanding the fact that the decision as to which is the place of removal depends upon the facts of each case.19) The consequence of the aforesaid discussion would be to set aside the order of the Tribunal and remit the case to it for fresh consideration after looking into the facts of the present case, namely, the terms and conditions of the sale with the buyer and determination on that basis as to which was the place of removal, that is whether it was the factory gate of the assessee or the place of delivery. We may record that as per the Commissioner, place of removal was the place of delivery at the buyers premises. However, since no documents are produced before us, we are not in a position to comment as to whether the aforesaid view taken by the Commissioner is proper or not. | 1[ds]18) The perfunctory manner in which the appeal of the assessee is allowed, cannot be countenanced. If the Tribunal was confirming the decision of the Authority below, may be detailed discussion was not required as the reasons given in detail could be found in the order appealed against, though even in such a case brief reasons are to be given by the Tribunal, in particular, to meet the arguments which are advanced by the appellant while challenging such an order. However, in the instant case, we find that there is a detailed discussion in the order of the Commissioner on the facts of the case. Those facts are not adverted to or dealt with. The decision of the Commissioner is overruled with single observation that the case is covered by the judgment in Escorts JCB Ltd., without discussing as to how it was so covered. This is notwithstanding the fact that the decision as to which is the place of removal depends upon the facts of each case.19) The consequence of the aforesaid discussion would be to set aside the order of the Tribunal and remit the case to it for fresh consideration after looking into the facts of the present case, namely, the terms and conditions of the sale with the buyer and determination on that basis as to which was the place of removal, that is whether it was the factory gate of the assessee or the place of delivery. We may record that as per the Commissioner, place of removal was the place of delivery at the buyers premises. However, since no documents are produced before us, we are not in a position to comment as to whether the aforesaid view taken by the Commissioner is proper orWe have extensively discussed the judgment in Escorts JCB Ltd. because of the reason that the Tribunal has allowed the appeal of the respondent herein with the observations that case of the respondent is covered by this judgment. We would like to point out at this stage that in Commissioner of Central Excise, Noida v. Accurate Meters Ltd. ((2009) 6 SCC 52 ), the Court took note of few more decisions, including the case of Escorts JCB Ltd., and reiterated the aforesaid principles but at the same time also emphasizing that the place of removal depends on the facts of each case.14) In a recent decision of this Court in Commissioner, Customs and Central Excise, Aurangabad v. M/s. Roofit Industries Ltd. ((2015) 5 SCALE 470 ), the position in law was summarized in the followingThe principle of law, thus, is crystal clear. It is to be seen as to whether as to at what point of time sale is effected namely whether it is on factory gate or at a later point of time i.e. when the delivery of the goods is effected to the buyer at his premises. This aspect is to be seen in the light of provisions of the Sale of Goods Act by applying the same to the facts of each case to determine as to when the ownership in the goods is transferred from the seller to the buyer. The charges which are to be added have put up to the stage of the transfer of that ownership inasmuch as once the ownership in goods stands transferred to the buyer, any expenditure incurred thereafter has to be on buyers account and cannot be a component which would be included while ascertaining the valuation of the goods manufactured by the buyer. That is the plain meaning which has to be assigned to Section 4 read with ValuationHaving stated the legal position, we now revert to the facts of the present case.16)The Commissioner, Central Excise while deciding that the transportation charges as well as transit insurance charges are to be included for fixing the transaction value. The order reveals that the Commissioner had scanned through the agreements entered into between the assessee and with various customers and other documents on the basis of which the Commissioner concluded that the property in goods was passed on to the customers only at the destination. According to him, there was a specific condition in the contracts that the goods will be dispatched from freighty road and up to the destination of the customers. It was also stated that material should be dispatched duly insured by the assessee up to the customers destination and the cost towards obtaining insurance was included in the price. These contracts further contain a clear stipulation that in case of any damage to the goods during transit, the supplier will lodge the claim and obtain compensation from the insurance company. So much so, one Deputy Manager of the assessee, viz. Shri D.K. Bhattacharya in his statement, recorded under Section 14 of the Act, had specifically stated thaty of the goods lies on M/s. Emco till the delivery of the said goods to the customers premises and, therefore, freight incurred and transit insurance charges were recovered from the customers......for covering the transit risk they had taken out transit insurance policy and whenever there was a loss or damage to goods M/s. Emco claims the same from the insurance company.....the possession of the goods is transferred only at the premises of thee Commissioner also noted that the aforesaid statement was even confirmed by the General Manager of the assessee.17) The Tribunal did not bother to look into any of the aforesaid aspects and/or discussed the same. In a cryptic, the Tribunal allowed the appeal. To be precise, the following order ise issued a notice proposing to levy duty in the value of amount of freight and transit insurance recovered by them but the same suppressed from the department as it appears from page 10G the show cause notice.2. It was confirmed after hearing both sides, it is found that the issue is well settled in favouring the assessee by the decision in the case of Associated Strips Ltd. [2002 (143) ELTwhich has been approved by the Apex Court in the case of Escorts JCB Ltd. Vs. Collector of Central Excise [2002 (146) ELT 31 (SC)]. Being bound by the same, this order impugned cannot be restrained and is to be set aside and appeal | 1 | 4,599 | 1,134 | ### 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:
6 SCC 52 ), the Court took note of few more decisions, including the case of Escorts JCB Ltd., and reiterated the aforesaid principles but at the same time also emphasizing that the place of removal depends on the facts of each case.14) In a recent decision of this Court in Commissioner, Customs and Central Excise, Aurangabad v. M/s. Roofit Industries Ltd. ((2015) 5 SCALE 470 ), the position in law was summarized in the following manner: “12) The principle of law, thus, is crystal clear. It is to be seen as to whether as to at what point of time sale is effected namely whether it is on factory gate or at a later point of time i.e. when the delivery of the goods is effected to the buyer at his premises. This aspect is to be seen in the light of provisions of the Sale of Goods Act by applying the same to the facts of each case to determine as to when the ownership in the goods is transferred from the seller to the buyer. The charges which are to be added have put up to the stage of the transfer of that ownership inasmuch as once the ownership in goods stands transferred to the buyer, any expenditure incurred thereafter has to be on buyers account and cannot be a component which would be included while ascertaining the valuation of the goods manufactured by the buyer. That is the plain meaning which has to be assigned to Section 4 read with Valuation Rules.” 15) Having stated the legal position, we now revert to the facts of the present case.16) The Commissioner, Central Excise while deciding that the transportation charges as well as transit insurance charges are to be included for fixing the transaction value. The order reveals that the Commissioner had scanned through the agreements entered into between the assessee and with various customers and other documents on the basis of which the Commissioner concluded that the property in goods was passed on to the customers only at the destination. According to him, there was a specific condition in the contracts that the goods will be dispatched from freight pre-paid by road and up to the destination of the customers. It was also stated that material should be dispatched duly insured by the assessee up to the customers destination and the cost towards obtaining insurance was included in the price. These contracts further contain a clear stipulation that in case of any damage to the goods during transit, the supplier will lodge the claim and obtain compensation from the insurance company. So much so, one Deputy Manager of the assessee, viz. Shri D.K. Bhattacharya in his statement, recorded under Section 14 of the Act, had specifically stated that “the responsibility of the goods lies on M/s. Emco till the delivery of the said goods to the customers premises and, therefore, freight incurred and transit insurance charges were recovered from the customers......for covering the transit risk they had taken out transit insurance policy and whenever there was a loss or damage to goods M/s. Emco claims the same from the insurance company.....the possession of the goods is transferred only at the premises of the buyers/customers”. The Commissioner also noted that the aforesaid statement was even confirmed by the General Manager of the assessee.17) The Tribunal did not bother to look into any of the aforesaid aspects and/or discussed the same. In a cryptic non-reasoned order, the Tribunal allowed the appeal. To be precise, the following order is passed: “Appellants were issued a notice proposing to levy duty in the value of amount of freight and transit insurance recovered by them but the same suppressed from the department as it appears from page 10G the show cause notice.2. It was confirmed after hearing both sides, it is found that the issue is well settled in favouring the assessee by the decision in the case of Associated Strips Ltd. [2002 (143) ELT 131-Trib.) which has been approved by the Apex Court in the case of Escorts JCB Ltd. Vs. Collector of Central Excise [2002 (146) ELT 31 (SC)]. Being bound by the same, this order impugned cannot be restrained and is to be set aside and appeal allowed.” 18) The perfunctory manner in which the appeal of the assessee is allowed, cannot be countenanced. If the Tribunal was confirming the decision of the Authority below, may be detailed discussion was not required as the reasons given in detail could be found in the order appealed against, though even in such a case brief reasons are to be given by the Tribunal, in particular, to meet the arguments which are advanced by the appellant while challenging such an order. However, in the instant case, we find that there is a detailed discussion in the order of the Commissioner on the facts of the case. Those facts are not adverted to or dealt with. The decision of the Commissioner is overruled with single observation that the case is covered by the judgment in Escorts JCB Ltd., without discussing as to how it was so covered. This is notwithstanding the fact that the decision as to which is the place of removal depends upon the facts of each case.19) The consequence of the aforesaid discussion would be to set aside the order of the Tribunal and remit the case to it for fresh consideration after looking into the facts of the present case, namely, the terms and conditions of the sale with the buyer and determination on that basis as to which was the place of removal, that is whether it was the factory gate of the assessee or the place of delivery. We may record that as per the Commissioner, place of removal was the place of delivery at the buyers premises. However, since no documents are produced before us, we are not in a position to comment as to whether the aforesaid view taken by the Commissioner is proper or not.
### Response:
1
### Explanation:
reasons given in detail could be found in the order appealed against, though even in such a case brief reasons are to be given by the Tribunal, in particular, to meet the arguments which are advanced by the appellant while challenging such an order. However, in the instant case, we find that there is a detailed discussion in the order of the Commissioner on the facts of the case. Those facts are not adverted to or dealt with. The decision of the Commissioner is overruled with single observation that the case is covered by the judgment in Escorts JCB Ltd., without discussing as to how it was so covered. This is notwithstanding the fact that the decision as to which is the place of removal depends upon the facts of each case.19) The consequence of the aforesaid discussion would be to set aside the order of the Tribunal and remit the case to it for fresh consideration after looking into the facts of the present case, namely, the terms and conditions of the sale with the buyer and determination on that basis as to which was the place of removal, that is whether it was the factory gate of the assessee or the place of delivery. We may record that as per the Commissioner, place of removal was the place of delivery at the buyers premises. However, since no documents are produced before us, we are not in a position to comment as to whether the aforesaid view taken by the Commissioner is proper orWe have extensively discussed the judgment in Escorts JCB Ltd. because of the reason that the Tribunal has allowed the appeal of the respondent herein with the observations that case of the respondent is covered by this judgment. We would like to point out at this stage that in Commissioner of Central Excise, Noida v. Accurate Meters Ltd. ((2009) 6 SCC 52 ), the Court took note of few more decisions, including the case of Escorts JCB Ltd., and reiterated the aforesaid principles but at the same time also emphasizing that the place of removal depends on the facts of each case.14) In a recent decision of this Court in Commissioner, Customs and Central Excise, Aurangabad v. M/s. Roofit Industries Ltd. ((2015) 5 SCALE 470 ), the position in law was summarized in the followingThe principle of law, thus, is crystal clear. It is to be seen as to whether as to at what point of time sale is effected namely whether it is on factory gate or at a later point of time i.e. when the delivery of the goods is effected to the buyer at his premises. This aspect is to be seen in the light of provisions of the Sale of Goods Act by applying the same to the facts of each case to determine as to when the ownership in the goods is transferred from the seller to the buyer. The charges which are to be added have put up to the stage of the transfer of that ownership inasmuch as once the ownership in goods stands transferred to the buyer, any expenditure incurred thereafter has to be on buyers account and cannot be a component which would be included while ascertaining the valuation of the goods manufactured by the buyer. That is the plain meaning which has to be assigned to Section 4 read with ValuationHaving stated the legal position, we now revert to the facts of the present case.16)The Commissioner, Central Excise while deciding that the transportation charges as well as transit insurance charges are to be included for fixing the transaction value. The order reveals that the Commissioner had scanned through the agreements entered into between the assessee and with various customers and other documents on the basis of which the Commissioner concluded that the property in goods was passed on to the customers only at the destination. According to him, there was a specific condition in the contracts that the goods will be dispatched from freighty road and up to the destination of the customers. It was also stated that material should be dispatched duly insured by the assessee up to the customers destination and the cost towards obtaining insurance was included in the price. These contracts further contain a clear stipulation that in case of any damage to the goods during transit, the supplier will lodge the claim and obtain compensation from the insurance company. So much so, one Deputy Manager of the assessee, viz. Shri D.K. Bhattacharya in his statement, recorded under Section 14 of the Act, had specifically stated thaty of the goods lies on M/s. Emco till the delivery of the said goods to the customers premises and, therefore, freight incurred and transit insurance charges were recovered from the customers......for covering the transit risk they had taken out transit insurance policy and whenever there was a loss or damage to goods M/s. Emco claims the same from the insurance company.....the possession of the goods is transferred only at the premises of thee Commissioner also noted that the aforesaid statement was even confirmed by the General Manager of the assessee.17) The Tribunal did not bother to look into any of the aforesaid aspects and/or discussed the same. In a cryptic, the Tribunal allowed the appeal. To be precise, the following order ise issued a notice proposing to levy duty in the value of amount of freight and transit insurance recovered by them but the same suppressed from the department as it appears from page 10G the show cause notice.2. It was confirmed after hearing both sides, it is found that the issue is well settled in favouring the assessee by the decision in the case of Associated Strips Ltd. [2002 (143) ELTwhich has been approved by the Apex Court in the case of Escorts JCB Ltd. Vs. Collector of Central Excise [2002 (146) ELT 31 (SC)]. Being bound by the same, this order impugned cannot be restrained and is to be set aside and appeal
|
Uco Bank Vs. Official Liquidator, High Court | is as under "529. Application of insolvency rules in winding up of insolvent companies. - (1) In the winding up of an insolvent company, the same rues shall prevail and be observed with regard to - (a) debts provable; (b) the valuation of annuities and future and contingent liabilities; and (c) the respective rights of secured and unsecured creditors; as are in force for the time being under the law of insolvency with respect to the estates of persons adjudged insolvent (Inserted by Companies (Amendment) Act, 1985) [Provided that the security of every secured creditor shall be deemed to be subject to a pari passu charge in favour of the workmen to the extent of the workmens portion therein, and, where a secured creditor, instead of relinquishing his security and proving his debt, opts to realise his security, - (a) the liquidator shall be entitled to represent the workmen and enforce such charge; (b) any amount realised by the liquidator by way of enforcement of such charge shall be applied rateably for the discharge of workmens dues; and (c) so much of the debt due to such secured creditor as could not be realised by him by virtue of the foregoing provisions of this proviso or the amount of the workmens portion in his security, whichever is less, shall rank pari passu with the workmens dues for the purposes of Section 529-A.]" * 3. The contention of the appellant, a secured creditor, which was accepted by the learned Company Judge but, on appeal, has been rejected by the Division Bench of the High Court in the impugned order dated 16-10-1991 in Appeal No. 920 of 1991, was that the aforesaid amendment including the above-quoted proviso is inapplicable in the present case since the decree had been obtained by the appellant prior to the above amendment made in the Principal Act. The submission of Dr. S. Ghose, learned counsel for the appellant, is that the above amendment including the said proviso has no application to a secured creditors claim based on a decree obtained prior to the said amendment. In other words, the submission is that the said proviso does not apply to a decree obtained for realisation of the security available to the secured creditor if the decree was obtained prior to the amendment even though realisation of the security by execution of the decree is subsequent to the amendment. We find no merit in this contention 4. Part VII of the Companies Act, 1956 relates to Winding up and therein Sections 528 to 530 pertain to Proof and ranking of claims in Chapter V relating to Provisions applicable to every mode of winding up. Section 529 deals with Application of insolvency rules in winding up of insolvent company, Section 529-A with Overriding preferential payments, and Section 530 with Preferential payments. It is obvious that these provisions, as they exist, apply to a winding up proceeding 5. The proviso to sub-section (1) of Section 529 inserted by the Amending Act clearly provides that "the security of every secured creditor shall be deemed to be subject to a pari passu charge in favour of the workmen." The effect of the proviso is to create, by statute, a charge pari passu in favour of the workmen on every security available to the secured creditors of the employer company for recovery of their debts at the time when the amendment came into force. This expression is wide enough to apply to the security of every secured creditor which remained unrealised on the date of the amendment. The clear object of the amendment is that the legitimate dues of workers must rank pari passu with those of secured creditors and above even the dues of the Government. This literal construction of the proviso is in consonance with, and promotes, the avowed object of the amendment made. On the contrary, the construction of the proviso suggested by the learned counsel for the appellant, apart from being in conflict with the plain language of the proviso also defeats the object of the legislation6. The existence of the security on the date the amendment came into effect creates a pari passu charge in favour of the workmen upon that security. It is only if the security has been realised, pursuant to a decree, prior to the date of the amendment that the pari passu charge is not created, for there is no security upon which it can operate. There is, therefore, no retrospectivity in the operation of the provision as interpreted by us7. A debt due to a secured creditor, when recovered by realisation of the security after commencement of the winding up proceedings, results in depletion of the assets in the hands of the Official Liquidator. This provision is intended to protect the interests of the workmen in proceedings for winding up. In view of the nature of workmens dues being similar to those of secured creditors, the purpose of this provision is to place the workmen on a par with the secured creditors and create a statutory charge in their favour on all available securities forming part of the assets of the company in liquidation so that the workmen also share the securities pari passu with the secured creditors. The workmen contribute to the growth of the capital and must get their legitimate share in the assets of the company when the situation arises for its closure and distribution of its assets first among of secured creditors due to winding up of the company. The aforesaid amendment made in the Act is a statutory recognition of this principle equating the legitimate dues of the workmen with the debts of the secured creditors of the company. To achieve this purpose, it is necessary that the amended provision must apply to all available securities which form part of the assets of the company in liquidation on the date of the amendment. The conclusion reached by the Division Bench of the High Court is supported by this reason | 0[ds]5. The proviso to(1) of Section 529 inserted by the Amending Act clearly provides that "the security of every secured creditor shall be deemed to be subject to a pari passu charge in favour of the workmen." The effect of the proviso is to create, by statute, a charge pari passu in favour of the workmen on every security available to the secured creditors of the employer company for recovery of their debts at the time when the amendment came into force. This expression is wide enough to apply to the security of every secured creditor which remained unrealised on the date of the amendment. The clear object of the amendment is that the legitimate dues of workers must rank pari passu with those of secured creditors and above even the dues of the Government. This literal construction of the proviso is in consonance with, and promotes, the avowed object of the amendment made. On the contrary, the construction of the proviso suggested by the learned counsel for the appellant, apart from being in conflict with the plain language of the proviso also defeats the object of the legislation6. The existence of the security on the date the amendment came into effect creates a pari passu charge in favour of the workmen upon that security. It is only if the security has been realised, pursuant to a decree, prior to the date of the amendment that the pari passu charge is not created, for there is no security upon which it can operate. There is, therefore, no retrospectivity in the operation of the provision as interpreted by us7. A debt due to a secured creditor, when recovered by realisation of the security after commencement of the winding up proceedings, results in depletion of the assets in the hands of the Official Liquidator. This provision is intended to protect the interests of the workmen in proceedings for winding up. In view of the nature of workmens dues being similar to those of secured creditors, the purpose of this provision is to place the workmen on a par with the secured creditors and create a statutory charge in their favour on all available securities forming part of the assets of the company in liquidation so that the workmen also share the securities pari passu with the secured creditors. The workmen contribute to the growth of the capital and must get their legitimate share in the assets of the company when the situation arises for its closure and distribution of its assets first among of secured creditors due to winding up of the company. The aforesaid amendment made in the Act is a statutory recognition of this principle equating the legitimate dues of the workmen with the debts of the secured creditors of the company. To achieve this purpose, it is necessary that the amended provision must apply to all available securities which form part of the assets of the company in liquidation on the date of the amendment. The conclusion reached by the Division Bench of the High Court is supported by this reason | 0 | 1,559 | 552 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
### Input:
is as under "529. Application of insolvency rules in winding up of insolvent companies. - (1) In the winding up of an insolvent company, the same rues shall prevail and be observed with regard to - (a) debts provable; (b) the valuation of annuities and future and contingent liabilities; and (c) the respective rights of secured and unsecured creditors; as are in force for the time being under the law of insolvency with respect to the estates of persons adjudged insolvent (Inserted by Companies (Amendment) Act, 1985) [Provided that the security of every secured creditor shall be deemed to be subject to a pari passu charge in favour of the workmen to the extent of the workmens portion therein, and, where a secured creditor, instead of relinquishing his security and proving his debt, opts to realise his security, - (a) the liquidator shall be entitled to represent the workmen and enforce such charge; (b) any amount realised by the liquidator by way of enforcement of such charge shall be applied rateably for the discharge of workmens dues; and (c) so much of the debt due to such secured creditor as could not be realised by him by virtue of the foregoing provisions of this proviso or the amount of the workmens portion in his security, whichever is less, shall rank pari passu with the workmens dues for the purposes of Section 529-A.]" * 3. The contention of the appellant, a secured creditor, which was accepted by the learned Company Judge but, on appeal, has been rejected by the Division Bench of the High Court in the impugned order dated 16-10-1991 in Appeal No. 920 of 1991, was that the aforesaid amendment including the above-quoted proviso is inapplicable in the present case since the decree had been obtained by the appellant prior to the above amendment made in the Principal Act. The submission of Dr. S. Ghose, learned counsel for the appellant, is that the above amendment including the said proviso has no application to a secured creditors claim based on a decree obtained prior to the said amendment. In other words, the submission is that the said proviso does not apply to a decree obtained for realisation of the security available to the secured creditor if the decree was obtained prior to the amendment even though realisation of the security by execution of the decree is subsequent to the amendment. We find no merit in this contention 4. Part VII of the Companies Act, 1956 relates to Winding up and therein Sections 528 to 530 pertain to Proof and ranking of claims in Chapter V relating to Provisions applicable to every mode of winding up. Section 529 deals with Application of insolvency rules in winding up of insolvent company, Section 529-A with Overriding preferential payments, and Section 530 with Preferential payments. It is obvious that these provisions, as they exist, apply to a winding up proceeding 5. The proviso to sub-section (1) of Section 529 inserted by the Amending Act clearly provides that "the security of every secured creditor shall be deemed to be subject to a pari passu charge in favour of the workmen." The effect of the proviso is to create, by statute, a charge pari passu in favour of the workmen on every security available to the secured creditors of the employer company for recovery of their debts at the time when the amendment came into force. This expression is wide enough to apply to the security of every secured creditor which remained unrealised on the date of the amendment. The clear object of the amendment is that the legitimate dues of workers must rank pari passu with those of secured creditors and above even the dues of the Government. This literal construction of the proviso is in consonance with, and promotes, the avowed object of the amendment made. On the contrary, the construction of the proviso suggested by the learned counsel for the appellant, apart from being in conflict with the plain language of the proviso also defeats the object of the legislation6. The existence of the security on the date the amendment came into effect creates a pari passu charge in favour of the workmen upon that security. It is only if the security has been realised, pursuant to a decree, prior to the date of the amendment that the pari passu charge is not created, for there is no security upon which it can operate. There is, therefore, no retrospectivity in the operation of the provision as interpreted by us7. A debt due to a secured creditor, when recovered by realisation of the security after commencement of the winding up proceedings, results in depletion of the assets in the hands of the Official Liquidator. This provision is intended to protect the interests of the workmen in proceedings for winding up. In view of the nature of workmens dues being similar to those of secured creditors, the purpose of this provision is to place the workmen on a par with the secured creditors and create a statutory charge in their favour on all available securities forming part of the assets of the company in liquidation so that the workmen also share the securities pari passu with the secured creditors. The workmen contribute to the growth of the capital and must get their legitimate share in the assets of the company when the situation arises for its closure and distribution of its assets first among of secured creditors due to winding up of the company. The aforesaid amendment made in the Act is a statutory recognition of this principle equating the legitimate dues of the workmen with the debts of the secured creditors of the company. To achieve this purpose, it is necessary that the amended provision must apply to all available securities which form part of the assets of the company in liquidation on the date of the amendment. The conclusion reached by the Division Bench of the High Court is supported by this reason
### Response:
0
### Explanation:
5. The proviso to(1) of Section 529 inserted by the Amending Act clearly provides that "the security of every secured creditor shall be deemed to be subject to a pari passu charge in favour of the workmen." The effect of the proviso is to create, by statute, a charge pari passu in favour of the workmen on every security available to the secured creditors of the employer company for recovery of their debts at the time when the amendment came into force. This expression is wide enough to apply to the security of every secured creditor which remained unrealised on the date of the amendment. The clear object of the amendment is that the legitimate dues of workers must rank pari passu with those of secured creditors and above even the dues of the Government. This literal construction of the proviso is in consonance with, and promotes, the avowed object of the amendment made. On the contrary, the construction of the proviso suggested by the learned counsel for the appellant, apart from being in conflict with the plain language of the proviso also defeats the object of the legislation6. The existence of the security on the date the amendment came into effect creates a pari passu charge in favour of the workmen upon that security. It is only if the security has been realised, pursuant to a decree, prior to the date of the amendment that the pari passu charge is not created, for there is no security upon which it can operate. There is, therefore, no retrospectivity in the operation of the provision as interpreted by us7. A debt due to a secured creditor, when recovered by realisation of the security after commencement of the winding up proceedings, results in depletion of the assets in the hands of the Official Liquidator. This provision is intended to protect the interests of the workmen in proceedings for winding up. In view of the nature of workmens dues being similar to those of secured creditors, the purpose of this provision is to place the workmen on a par with the secured creditors and create a statutory charge in their favour on all available securities forming part of the assets of the company in liquidation so that the workmen also share the securities pari passu with the secured creditors. The workmen contribute to the growth of the capital and must get their legitimate share in the assets of the company when the situation arises for its closure and distribution of its assets first among of secured creditors due to winding up of the company. The aforesaid amendment made in the Act is a statutory recognition of this principle equating the legitimate dues of the workmen with the debts of the secured creditors of the company. To achieve this purpose, it is necessary that the amended provision must apply to all available securities which form part of the assets of the company in liquidation on the date of the amendment. The conclusion reached by the Division Bench of the High Court is supported by this reason
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State Of Haryana Vs. Darshana Devi & Ors | Krishna Iyer, J.1. We refuse leave but with a message tag.2. The poor shall not be priced out of the Justice market by insistence on court-fee and refusal to apply the exemptive provisions of Order XXXIII, CPC. So we are distressed that the State of Haryana, mindless of the mandate of equal justice to the indigent under the Magna Carta of our Republic, expressed in Article 14 and stressed in Article 39A of the Constitution, has sought leave to appeal against the order of the High Court which has rightly extended the pauper provisions to auto-accident claims. The reasoning of the High Court in holding that Order XXXIII will apply to tribunals which have the trappings of the civil court finds our approval. We affirm the decision.3. Even so it is fair for the State to make clear the situation by framing appropriate rules to exempt from levy of court-fee cases of claims of compensation where automobile accidents are the cause.4. Here is a case of a widow and daughter claiming compensation for the killing of the sole bread-winner by a State Transport bus; and the Haryana Government, instead of acting on social justice and generously settling the claim, fights like a cantankerous litigant even by avoiding adjudication through the device of asking for court-fee from the pathetic plaintiffs.5. Two principles are involved. Access to court is an aspect of social justice and the State has no rational litigation policy if it forgets this fundamental. Our perspective is best projected by Cappelletti, quoted by the Australian Law Reform Commission :The right of effective access to justice has emerged with the new social rights. Indeed, it is of paramount importance among these new rights since, clearly, the enjoyment of traditional as well as new social rights presupposes mechanisms for their effective protection. Such protection, moreover, is best assured by a workable remedy within the framework of the judicial system. Effective access to justice can thus be seen as the most basic requirement - the most basic human right - of a system which purports to guarantee legal right.We should expand the jurisprudence of access to justice as an integral part of Social Justice and examine the constitutionalism of court-fee levy as a facet of human rights highlighted in our Nations Constitution. If the State itself should travesty this basic principle, in the teeth of Articles 14 and 39A, where an indigent widow is involved, a second look at its policy is overdue. The Court must give the benefit of doubt against levy of a price to enter the temple of justice until one day the whole issue of the validity of profit-making through sale of civil justice, disguised as court-fee, is fully reviewed by this Court. Before parting with this point we must express our poignant feeling that no State, it seems, has, as yet, framed rules to give effect to the benignant provision of legal aid to the poor in Order XXXIII, Rule 9A, Civil Procedure Code, although several years have passed since the enactment. Parliament is stultified and the People are frustrated. Even after a law has been enacted for the benefit of the Poor, the State does not bring into force by wilful default in fulfilling the conditio sine qua non. It is public duty of each great branch of Government to obey the rule of law and uphold the tryst with the Constitution by making rules to effectuate legislation meant to help the poor.6. The second principle the State of Haryana has unhappily failed to remember is its duty under Article 41 of the Constitution to render public assistance, without litigation, in cases of disablement and undeserved want. It is a notorious fact that our highways are graveyards on a tragic sale, what with narrow, neglected roads, reckless, unchecked drivers, heavy vehicular traffic and State Transport buses often inflicting the maximum casualties. Now that insurance against third party risk is compulsory and motor insurance is nationalised and transport itself is largely by State Undertakings, the principle of no-fault liability and on-the-spot settlement of claims should become national policy. The victims, as here, are mostly below the poverty line and litigation is compounded misery. Hit-and-run cases are common and the time is ripe for the Court to examine whether no-fault liability is not implicit in the Motor Vehicles Act itself and for Parliament to make law in this behalf to remove all doubts. A long-ago Report of the Central Law Commission confined to hit-and-run cases of auto-accidents is gathering dust. The horrendous increase of highway casualties and the chronic neglect of rules of road-safety constrains us to recommend to the Central Law Commission and to Parliament to sensitize this tragic area of tort law and overhaul it humanistically.7. Another aspect must be noticed before we part with this petition. In many States, for want of judicial manpower or other pathological causes, the accident claims pend before tribunals in heartless slowness. Courts must give this bleeding class of cases high priority, adopt simplified procedures without breach of national justice, try out pre-trial settlements and narrow down the controversy and remember, that wiping every tear from every eye has judicial relevance. For law must keep its promise to justice. | 0[ds]5. Two principles are involved. Access to court is an aspect of social justice and the State has no rational litigation policy if it forgets this fundamental.The second principle the State of Haryana has unhappily failed to remember is its duty under Article 41 of the Constitution to render public assistance, without litigation, in cases of disablement and undeserved want. It is a notorious fact that our highways are graveyards on a tragic sale, what with narrow, neglected roads, reckless, unchecked drivers, heavy vehicular traffic and State Transport buses often inflicting the maximum casualties. Now that insurance against third party risk is compulsory and motor insurance is nationalised and transport itself is largely by State Undertakings, the principle of no-fault liability and on-the-spot settlement of claims should become national policy. The victims, as here, are mostly below the poverty line and litigation is compounded misery. Hit-and-run cases are common and the time is ripe for the Court to examine whetherliability is not implicit in the Motor Vehicles Act itself and for Parliament to make law in this behalf to remove all doubts.A long-ago Report of the Central Law Commission confined to hit-and-run cases of auto-accidents is gathering dust. The horrendous increase of highway casualties and the chronic neglect of rules of road-safety constrains us to recommend to the Central Law Commission and to Parliament to sensitize this tragic area of tort law and overhaul it humanistically.7. Another aspect must be noticed before we part with this petition. In many States, for want of judicial manpower or other pathological causes, the accident claims pend before tribunals in heartless slowness. Courts must give this bleeding class of cases high priority, adopt simplified procedures without breach of national justice, try out pre-trial settlements and narrow down the controversy and remember, that wiping every tear from every eye has judicial relevance. For law must keep its promise to justice. | 0 | 943 | 346 | ### 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:
Krishna Iyer, J.1. We refuse leave but with a message tag.2. The poor shall not be priced out of the Justice market by insistence on court-fee and refusal to apply the exemptive provisions of Order XXXIII, CPC. So we are distressed that the State of Haryana, mindless of the mandate of equal justice to the indigent under the Magna Carta of our Republic, expressed in Article 14 and stressed in Article 39A of the Constitution, has sought leave to appeal against the order of the High Court which has rightly extended the pauper provisions to auto-accident claims. The reasoning of the High Court in holding that Order XXXIII will apply to tribunals which have the trappings of the civil court finds our approval. We affirm the decision.3. Even so it is fair for the State to make clear the situation by framing appropriate rules to exempt from levy of court-fee cases of claims of compensation where automobile accidents are the cause.4. Here is a case of a widow and daughter claiming compensation for the killing of the sole bread-winner by a State Transport bus; and the Haryana Government, instead of acting on social justice and generously settling the claim, fights like a cantankerous litigant even by avoiding adjudication through the device of asking for court-fee from the pathetic plaintiffs.5. Two principles are involved. Access to court is an aspect of social justice and the State has no rational litigation policy if it forgets this fundamental. Our perspective is best projected by Cappelletti, quoted by the Australian Law Reform Commission :The right of effective access to justice has emerged with the new social rights. Indeed, it is of paramount importance among these new rights since, clearly, the enjoyment of traditional as well as new social rights presupposes mechanisms for their effective protection. Such protection, moreover, is best assured by a workable remedy within the framework of the judicial system. Effective access to justice can thus be seen as the most basic requirement - the most basic human right - of a system which purports to guarantee legal right.We should expand the jurisprudence of access to justice as an integral part of Social Justice and examine the constitutionalism of court-fee levy as a facet of human rights highlighted in our Nations Constitution. If the State itself should travesty this basic principle, in the teeth of Articles 14 and 39A, where an indigent widow is involved, a second look at its policy is overdue. The Court must give the benefit of doubt against levy of a price to enter the temple of justice until one day the whole issue of the validity of profit-making through sale of civil justice, disguised as court-fee, is fully reviewed by this Court. Before parting with this point we must express our poignant feeling that no State, it seems, has, as yet, framed rules to give effect to the benignant provision of legal aid to the poor in Order XXXIII, Rule 9A, Civil Procedure Code, although several years have passed since the enactment. Parliament is stultified and the People are frustrated. Even after a law has been enacted for the benefit of the Poor, the State does not bring into force by wilful default in fulfilling the conditio sine qua non. It is public duty of each great branch of Government to obey the rule of law and uphold the tryst with the Constitution by making rules to effectuate legislation meant to help the poor.6. The second principle the State of Haryana has unhappily failed to remember is its duty under Article 41 of the Constitution to render public assistance, without litigation, in cases of disablement and undeserved want. It is a notorious fact that our highways are graveyards on a tragic sale, what with narrow, neglected roads, reckless, unchecked drivers, heavy vehicular traffic and State Transport buses often inflicting the maximum casualties. Now that insurance against third party risk is compulsory and motor insurance is nationalised and transport itself is largely by State Undertakings, the principle of no-fault liability and on-the-spot settlement of claims should become national policy. The victims, as here, are mostly below the poverty line and litigation is compounded misery. Hit-and-run cases are common and the time is ripe for the Court to examine whether no-fault liability is not implicit in the Motor Vehicles Act itself and for Parliament to make law in this behalf to remove all doubts. A long-ago Report of the Central Law Commission confined to hit-and-run cases of auto-accidents is gathering dust. The horrendous increase of highway casualties and the chronic neglect of rules of road-safety constrains us to recommend to the Central Law Commission and to Parliament to sensitize this tragic area of tort law and overhaul it humanistically.7. Another aspect must be noticed before we part with this petition. In many States, for want of judicial manpower or other pathological causes, the accident claims pend before tribunals in heartless slowness. Courts must give this bleeding class of cases high priority, adopt simplified procedures without breach of national justice, try out pre-trial settlements and narrow down the controversy and remember, that wiping every tear from every eye has judicial relevance. For law must keep its promise to justice.
### Response:
0
### Explanation:
5. Two principles are involved. Access to court is an aspect of social justice and the State has no rational litigation policy if it forgets this fundamental.The second principle the State of Haryana has unhappily failed to remember is its duty under Article 41 of the Constitution to render public assistance, without litigation, in cases of disablement and undeserved want. It is a notorious fact that our highways are graveyards on a tragic sale, what with narrow, neglected roads, reckless, unchecked drivers, heavy vehicular traffic and State Transport buses often inflicting the maximum casualties. Now that insurance against third party risk is compulsory and motor insurance is nationalised and transport itself is largely by State Undertakings, the principle of no-fault liability and on-the-spot settlement of claims should become national policy. The victims, as here, are mostly below the poverty line and litigation is compounded misery. Hit-and-run cases are common and the time is ripe for the Court to examine whetherliability is not implicit in the Motor Vehicles Act itself and for Parliament to make law in this behalf to remove all doubts.A long-ago Report of the Central Law Commission confined to hit-and-run cases of auto-accidents is gathering dust. The horrendous increase of highway casualties and the chronic neglect of rules of road-safety constrains us to recommend to the Central Law Commission and to Parliament to sensitize this tragic area of tort law and overhaul it humanistically.7. Another aspect must be noticed before we part with this petition. In many States, for want of judicial manpower or other pathological causes, the accident claims pend before tribunals in heartless slowness. Courts must give this bleeding class of cases high priority, adopt simplified procedures without breach of national justice, try out pre-trial settlements and narrow down the controversy and remember, that wiping every tear from every eye has judicial relevance. For law must keep its promise to justice.
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Vinita Saxena Vs. Pankaj Pandit | from a Hindu wedlock is one of the principal aim of Hindu Marriage where sanskar of marriage is advised for progeny and offspring. This view was taken in AIR 1991 MP 205 . This Court in Digvijay Singh vs. Pratap Kumari, AIR 1970 SC 137 has held as follows "A party is impotent if his or her mental or physical condition makes consummation of the marriage a practical impossibility. The condition must be one, according to the statute, which existed at the time of the marriage and continued to be so until the institution of the proceedings. In order to entitle the appellant to obtain a decree of nullity, establish that his wife, the respondent, was impotent at the time of the marriage and continued to be so until the institution of the proceedings." 27. Lord Denning in Sheldon v. Sheldon (1966) 2 All ER 257, "The categories of cruelty are not disclosed. Each case may be different. We deal with the conduct of human being who are not generally similar. Among the human beings there is no limit to the kind of conduct which may constitute cruelty. New type of cruelty may crop up in any case depending upon the human behaviour, capability to tolerate the conduct complained of. Such is the wonderful realm of cruelty." 28. Spouses owe rights and duties each to the other and in their relationship they must act reasonably. In every case where cruelty exists it is possible to say that the spouse at fault has been unreasonable. The list of cruelty, therefore, should be breach of the duty to act reasonably, whether in omission or commission, causing injury to health. Such a list avoids imputing on intention where in fact none may exist. Further all such matters are foresight, desires, wishes, intention, motives, perception, obtuseness, persistence and indifference would remain relevant but merely as matter of evidence bearing upon the requirement to act reasonably or as aggravation of the matters charged. We can also take note of the fact that the respondent had filed a revision against the order of the trial Courts direction for setting up of a medical Board to examine the respondent. At the time of hearing, this Court directed the counsel for the respondent to ascertain from the respondent as to whether he is willing to submit himself for medical examination. However, the respondent refused to submit himself for medical examination and go before the medical Board. This would but confirm the contention of the appellant that the respondent is suffering from Paranoid Schizophrenia and that this Court can draw adverse inference in view of the conduct of the respondent. In the case of Smt. Uma Rani vs. Arjan Devi (supra), it has been held that unsoundness of mind may be held to be cruelty. In the case of Harbhajan Singh Monga vs. Amarjeet Kaur (Supra), it has been held that attempt to commit suicide by one spouse has been found to amount to cruelty to other. The observation made by this Court in the case of Shobha Rani vs. Madhukar Reddi, AIR 1988 SC 121 can be reproduced to appreciate the facts and circumstances of the case on hand. It reads as follows: "There has been a marked change in the life around us. In matrimonial duties and responsibilities in particular, there is a sea change. They are of varying degrees from house to house or person to person. Therefore, when a spouse makes complaint about the treatment of cruelty by the partner in life or relations, the Court should not search for standard in life. A set of facts stigmatized as cruelty in one case may not be so in another case. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions. It may also depend upon their culture and human values to which they attach importance. The Judges and lawyers, therefore, should not import their own notions of life. Judges may not go in parallel with them. There may be a generation gap between the Judges and the parties. It would be better if the Judges keep aside their customs and manners. It would be also better if Judges less depend upon precedents." 29. Humane aspects which this Court should consider: The appellant was 24 years of age when she got married. The marriage lasted for four to five months only when she was compelled to leave the matrimonial home. The marriage between the parties was not consummated as the respondent was not in a position to fulfil the matrimonial obligation. The parties have been living separately since 1993. 13 years have passed they have never seen each other. Both the parties have crossed the point of no return. A workable solution is certainly not possible. Parties at this stage cannot reconcile themselves and live together forgetting their past as a bad dream. Parties have been fighting the legal battle from the year 1994. The situation between the parties would lead to a irrefutable conclusion that the appellant and the respondent can never ever stay as husband and wife and the wifes stay with the respondent is injurious to her health. The appellant has done her Ph.d. The respondent, according to the appellant, is not gainfully employed anywhere. As a matter of fact, after leaving his deposition incomplete during the trial, the respondent till date has neither appeared before the trial Court nor before the High Court. The facts and circumstances of the case as well as all aspects pertain to humanity and life would give sufficient cogent reasons for us to allow the appeal and relieve the appellant from shackles and chain of the respondent and let her live her own life, if nothing less but like a human being. In our view, the orders of the Courts below have resulted in grave miscarriage of justice to the appellant who has been constrained into living with a dead relationship for over 13 years. | 1[ds]22. In our view, the trial Court failed to appreciate the uncontroverted evidence of the appellant who had proved the case on every count. It has been established beyond doubt by the Medical doctors who had deposed as witnesses and brought the original medical record of the respondent that the respondent is suffering from mental disorder. Further ground for grant of divorce on the plea of mental insanity/mental disorder is different than cruelty. The appellant, in our view, had proved beyond doubt that the respondent suffered from mental disorder and that the appellant suffered cruelty by and at the behest of the respondent. Learned single Judge of the High Court failed to appreciate that in the absence of any evidence led by the respondent, the appellants evidence had to be relied upon and on the basis of the evidence, the decree for divorce was bound to be granted in favour of the appellant. The appellant had also given specific instances of cruelty which clearly establish that she had a reasonable apprehension that it will be harmful or injurious for her to live with the respondent.It is settled by catena of decisions that mental cruelty can cause even more serious injury than the physical harm and create in the mind of the injured appellant such apprehension as is contemplated in the Section. It is to be determined on whole facts of the case and the matrimonial relations between the spouses. To amount to cruelty, there must be such wilful treatment of the party which caused suffering in body or mind either as an actual fact or by way of apprehension in such a manner as to render the continued living together of spouses harmful or injurious having regard to the circumstances of the case. The word cruelty has not been defined and it has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. It is a course of conduct and one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. There may be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions, their culture and human values to which they attach importance.24. Judged by standard of modern civilization in the background of the cultural heritage and traditions of our society, a young and well educated woman like the appellant herein is not expected to endure the harassment in domestic life whether mental, physical, intentional or unintentional. Her sentiments have to be respected, her ambition and aspiration taken into account in making adjustment and her basic needs provided, though grievances arising from temperamentalIt must be proved that one partner in the marriage however mindless of the consequences has behaved in a way which the other spouse could not in the circumstances be called upon to endure, and that misconduct has caused injury to health or a reasonable apprehension of such injury. There are two sides to be considered in case of cruelty. From the appellants side, ought this appellant to be called on to endure the conduct? From the respondents side, was this conduct excusable? The court has then to decide whether the sum total of the reprehensible conduct was cruel. That depends on whether the cumulative conduct was sufficiently serious to say that from a reasonable persons point of view after a consideration of any excuse which the respondent might have in the circumstances, the conduct is such that the petitioner ought not be called upon to endure. As to what constitute the required mental cruelty for purposes of the said provision, will not depend upon the numerical count of such incidents or only on the continuous course of such conduct but really go by the intensity, gravity and stigmatic impact of it when meted out even once and the deleterious effect of it on the mental attitude, necessary for maintaining a conducive matrimonial home. If the taunts, complaints and reproaches are of ordinary nature only, the court perhaps need consider the further question as to whether their continuance or persistence over a period of time render, what normally would, otherwise, not be so serious an act to be so injurious and painful as to make the spouse charged with them genuinely and reasonably conclude that the maintenance of matrimonial home is not possible any longer.Spouses owe rights and duties each to the other and in their relationship they must act reasonably. In every case where cruelty exists it is possible to say that the spouse at fault has been unreasonable. The list of cruelty, therefore, should be breach of the duty to act reasonably, whether in omission or commission, causing injury to health. Such a list avoids imputing on intention where in fact none may exist. Further all such matters are foresight, desires, wishes, intention, motives, perception, obtuseness, persistence and indifference would remain relevant but merely as matter of evidence bearing upon the requirement to act reasonably or as aggravation of the matters charged. We can also take note of the fact that the respondent had filed a revision against the order of the trial Courts direction for setting up of a medical Board to examine the respondent. At the time of hearing, this Court directed the counsel for the respondent to ascertain from the respondent as to whether he is willing to submit himself for medical examination. However, the respondent refused to submit himself for medical examination and go before the medical Board. This would but confirm the contention of the appellant that the respondent is suffering from Paranoid Schizophrenia and that this Court can draw adverse inference in view of the conduct of the respondent. In the case of Smt. Uma Rani vs. Arjan Devi (supra), it has been held that unsoundness of mind may be held to beHumane aspects which this Court should consider: The appellant was 24 years of age when she got married. The marriage lasted for four to five months only when she was compelled to leave the matrimonial home. The marriage between the parties was not consummated as the respondent was not in a position to fulfil the matrimonial obligation. The parties have been living separately since 1993. 13 years have passed they have never seen each other. Both the parties have crossed the point of no return. A workable solution is certainly not possible. Parties at this stage cannot reconcile themselves and live together forgetting their past as a bad dream. Parties have been fighting the legal battle from the year 1994. The situation between the parties would lead to a irrefutable conclusion that the appellant and the respondent can never ever stay as husband and wife and the wifes stay with the respondent is injurious to her health. The appellant has done her Ph.d. The respondent, according to the appellant, is not gainfully employed anywhere. As a matter of fact, after leaving his deposition incomplete during the trial, the respondent till date has neither appeared before the trial Court nor before the High Court. The facts and circumstances of the case as well as all aspects pertain to humanity and life would give sufficient cogent reasons for us to allow the appeal and relieve the appellant from shackles and chain of the respondent and let her live her own life, if nothing less but like a human being. In our view, the orders of the Courts below have resulted in grave miscarriage of justice to the appellant who has been constrained into living with a dead relationship for over 13 years. | 1 | 9,146 | 1,430 | ### Instruction:
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from a Hindu wedlock is one of the principal aim of Hindu Marriage where sanskar of marriage is advised for progeny and offspring. This view was taken in AIR 1991 MP 205 . This Court in Digvijay Singh vs. Pratap Kumari, AIR 1970 SC 137 has held as follows "A party is impotent if his or her mental or physical condition makes consummation of the marriage a practical impossibility. The condition must be one, according to the statute, which existed at the time of the marriage and continued to be so until the institution of the proceedings. In order to entitle the appellant to obtain a decree of nullity, establish that his wife, the respondent, was impotent at the time of the marriage and continued to be so until the institution of the proceedings." 27. Lord Denning in Sheldon v. Sheldon (1966) 2 All ER 257, "The categories of cruelty are not disclosed. Each case may be different. We deal with the conduct of human being who are not generally similar. Among the human beings there is no limit to the kind of conduct which may constitute cruelty. New type of cruelty may crop up in any case depending upon the human behaviour, capability to tolerate the conduct complained of. Such is the wonderful realm of cruelty." 28. Spouses owe rights and duties each to the other and in their relationship they must act reasonably. In every case where cruelty exists it is possible to say that the spouse at fault has been unreasonable. The list of cruelty, therefore, should be breach of the duty to act reasonably, whether in omission or commission, causing injury to health. Such a list avoids imputing on intention where in fact none may exist. Further all such matters are foresight, desires, wishes, intention, motives, perception, obtuseness, persistence and indifference would remain relevant but merely as matter of evidence bearing upon the requirement to act reasonably or as aggravation of the matters charged. We can also take note of the fact that the respondent had filed a revision against the order of the trial Courts direction for setting up of a medical Board to examine the respondent. At the time of hearing, this Court directed the counsel for the respondent to ascertain from the respondent as to whether he is willing to submit himself for medical examination. However, the respondent refused to submit himself for medical examination and go before the medical Board. This would but confirm the contention of the appellant that the respondent is suffering from Paranoid Schizophrenia and that this Court can draw adverse inference in view of the conduct of the respondent. In the case of Smt. Uma Rani vs. Arjan Devi (supra), it has been held that unsoundness of mind may be held to be cruelty. In the case of Harbhajan Singh Monga vs. Amarjeet Kaur (Supra), it has been held that attempt to commit suicide by one spouse has been found to amount to cruelty to other. The observation made by this Court in the case of Shobha Rani vs. Madhukar Reddi, AIR 1988 SC 121 can be reproduced to appreciate the facts and circumstances of the case on hand. It reads as follows: "There has been a marked change in the life around us. In matrimonial duties and responsibilities in particular, there is a sea change. They are of varying degrees from house to house or person to person. Therefore, when a spouse makes complaint about the treatment of cruelty by the partner in life or relations, the Court should not search for standard in life. A set of facts stigmatized as cruelty in one case may not be so in another case. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions. It may also depend upon their culture and human values to which they attach importance. The Judges and lawyers, therefore, should not import their own notions of life. Judges may not go in parallel with them. There may be a generation gap between the Judges and the parties. It would be better if the Judges keep aside their customs and manners. It would be also better if Judges less depend upon precedents." 29. Humane aspects which this Court should consider: The appellant was 24 years of age when she got married. The marriage lasted for four to five months only when she was compelled to leave the matrimonial home. The marriage between the parties was not consummated as the respondent was not in a position to fulfil the matrimonial obligation. The parties have been living separately since 1993. 13 years have passed they have never seen each other. Both the parties have crossed the point of no return. A workable solution is certainly not possible. Parties at this stage cannot reconcile themselves and live together forgetting their past as a bad dream. Parties have been fighting the legal battle from the year 1994. The situation between the parties would lead to a irrefutable conclusion that the appellant and the respondent can never ever stay as husband and wife and the wifes stay with the respondent is injurious to her health. The appellant has done her Ph.d. The respondent, according to the appellant, is not gainfully employed anywhere. As a matter of fact, after leaving his deposition incomplete during the trial, the respondent till date has neither appeared before the trial Court nor before the High Court. The facts and circumstances of the case as well as all aspects pertain to humanity and life would give sufficient cogent reasons for us to allow the appeal and relieve the appellant from shackles and chain of the respondent and let her live her own life, if nothing less but like a human being. In our view, the orders of the Courts below have resulted in grave miscarriage of justice to the appellant who has been constrained into living with a dead relationship for over 13 years.
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1
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and obligations. It is a course of conduct and one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. There may be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions, their culture and human values to which they attach importance.24. Judged by standard of modern civilization in the background of the cultural heritage and traditions of our society, a young and well educated woman like the appellant herein is not expected to endure the harassment in domestic life whether mental, physical, intentional or unintentional. Her sentiments have to be respected, her ambition and aspiration taken into account in making adjustment and her basic needs provided, though grievances arising from temperamentalIt must be proved that one partner in the marriage however mindless of the consequences has behaved in a way which the other spouse could not in the circumstances be called upon to endure, and that misconduct has caused injury to health or a reasonable apprehension of such injury. There are two sides to be considered in case of cruelty. From the appellants side, ought this appellant to be called on to endure the conduct? From the respondents side, was this conduct excusable? The court has then to decide whether the sum total of the reprehensible conduct was cruel. That depends on whether the cumulative conduct was sufficiently serious to say that from a reasonable persons point of view after a consideration of any excuse which the respondent might have in the circumstances, the conduct is such that the petitioner ought not be called upon to endure. As to what constitute the required mental cruelty for purposes of the said provision, will not depend upon the numerical count of such incidents or only on the continuous course of such conduct but really go by the intensity, gravity and stigmatic impact of it when meted out even once and the deleterious effect of it on the mental attitude, necessary for maintaining a conducive matrimonial home. If the taunts, complaints and reproaches are of ordinary nature only, the court perhaps need consider the further question as to whether their continuance or persistence over a period of time render, what normally would, otherwise, not be so serious an act to be so injurious and painful as to make the spouse charged with them genuinely and reasonably conclude that the maintenance of matrimonial home is not possible any longer.Spouses owe rights and duties each to the other and in their relationship they must act reasonably. In every case where cruelty exists it is possible to say that the spouse at fault has been unreasonable. The list of cruelty, therefore, should be breach of the duty to act reasonably, whether in omission or commission, causing injury to health. Such a list avoids imputing on intention where in fact none may exist. Further all such matters are foresight, desires, wishes, intention, motives, perception, obtuseness, persistence and indifference would remain relevant but merely as matter of evidence bearing upon the requirement to act reasonably or as aggravation of the matters charged. We can also take note of the fact that the respondent had filed a revision against the order of the trial Courts direction for setting up of a medical Board to examine the respondent. At the time of hearing, this Court directed the counsel for the respondent to ascertain from the respondent as to whether he is willing to submit himself for medical examination. However, the respondent refused to submit himself for medical examination and go before the medical Board. This would but confirm the contention of the appellant that the respondent is suffering from Paranoid Schizophrenia and that this Court can draw adverse inference in view of the conduct of the respondent. In the case of Smt. Uma Rani vs. Arjan Devi (supra), it has been held that unsoundness of mind may be held to beHumane aspects which this Court should consider: The appellant was 24 years of age when she got married. The marriage lasted for four to five months only when she was compelled to leave the matrimonial home. The marriage between the parties was not consummated as the respondent was not in a position to fulfil the matrimonial obligation. The parties have been living separately since 1993. 13 years have passed they have never seen each other. Both the parties have crossed the point of no return. A workable solution is certainly not possible. Parties at this stage cannot reconcile themselves and live together forgetting their past as a bad dream. Parties have been fighting the legal battle from the year 1994. The situation between the parties would lead to a irrefutable conclusion that the appellant and the respondent can never ever stay as husband and wife and the wifes stay with the respondent is injurious to her health. The appellant has done her Ph.d. The respondent, according to the appellant, is not gainfully employed anywhere. As a matter of fact, after leaving his deposition incomplete during the trial, the respondent till date has neither appeared before the trial Court nor before the High Court. The facts and circumstances of the case as well as all aspects pertain to humanity and life would give sufficient cogent reasons for us to allow the appeal and relieve the appellant from shackles and chain of the respondent and let her live her own life, if nothing less but like a human being. In our view, the orders of the Courts below have resulted in grave miscarriage of justice to the appellant who has been constrained into living with a dead relationship for over 13 years.
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Subhadra Vs. Narsaji Chenaji Marwadi | Shah, J.1. Plot No. 68 Town Planning Scheme No. 1 Jamalpur Ahmedabad, part of survey No. 405 Mouje Rajpur-Hirpur admeasuring approximately 38 Gunthas was owned by Bai Jekor and her two sisters. By a lease dated October 15, 1934, this plot of land was granted in lease by the owners in perpetuity to Gajjar Ramanlal Gordhandas and his brother at an annual rental of Rs. 558. The lessees - Gajjars - sublet by a lease dated February 7, 1946, the plot, also in perpetuity to Narsaji Chenaji Marwadi - hereinafter referred to as the respondent - at an annual rental of Rs. 1,425. The respondent by deed dated April 25, 1947, sublet the plot to Subhadra - hereinafter referred to as the appellant - at an annual rental of Rs. 2,225. In all these three deeds, it was recited that the lessees may construct buildings on the land and for obtaining sanction in that behalf, the lessors shall make applications to the Collector or any other authority for that purpose. The plot on the dates of the three leases was assessed for agricultural purposes. Under the Bombay Land Revenue Code V of 1879, land assessed for agricultural purposes may be used for non-agricultural purpose if permission in that behalf is granted by the Collector. The appellant applied for permission for conversion of user of the land to non-agricultural purposes, and the Collector of Ahmedabad by order dated November 11, 1949, sanctioned conversion of the user. Thereafter, the appellant by application dated October 27, 1950, applied to the Court of Small Causes, Ahmedabad for fixation of standard rent of the plot under S. 11 of the Bombay Rents. Hotel and Lodging Houses Rates Control Act. 57 of 1947 - hereinafter referred to as the Act. The respondent contended that the land when granted in lease being agricultural, the provisions of Bombay Act did not apply hereto and the application was not maintainable. The Court of Small Causes upheld the contention of the respondent and dismissed the application. This order was confirmed in appeal to the District Court at Ahmedabad and in a revision application to the High Court of Judicature at Bombay. The appellant has, with special leave, appealed to this Court against the order of the High Court.2. It is common ground that till November 11, 1949, the plot was assessed for agricultural purposes under the Bombay Land Revenue Code. In the year 1947, the plot was undoubtedly lying fallow, out or that account, the user of the land cannot be deemed to be altered. User of the land could only be altered by the order of the Collector granted under S. 65 of the Bombay Land Revenue Code. Section 11 of the Bombay Act 57 of 1947 enables a competent Court upon application made to it for that purpose to fix standard rent of any premises. But S. 11 is in Part II of the Act and by S. 6 Cl. (1), it is provided that in areas specified in Schedule I, Part II applies to premises let for residence, education business, trade to storage. There is no dispute that Part II applied to the area in which the plot is situate; but before the appellant could maintain an application for fixation of standard rent under S. 11, she had to establish that the plot of land issued was "premises" within the meaning of S. 5 (8) of the Act and that it was let for residence, education, business, trade or storage. For the purposes of this appeal, it is unnecessary to consider whether the plot was let for residence, education, business, trade or storage. The expression "premises" is defined by S. 5 (8) and the material part of the definition is :"In this Act, unless there is anything repugnant to the subject or context -. . . . . . . . . . . . . . . . . .(8) "premises" means -(a) any land not being used for agricultural purposes.(b) any building or part of a building let separately (other than a farm building) including -(i) the garden, grounds, garages an5b d outhouses if any, appurtenant to such building or part of a building.(ii) any furniture supplied by the landlord for use in such building or part of a building.(iii) any fittings affixed to such building or part of a building for the more beneficial enjoyment thereof,....... ........ ........ ..........."3. Reading S. 5 sub-cl. (8) with S. 6 (1), it is manifest that Part II of the Act can apply in areas specified in Sch. II to lands (not being used for agricultural purposes) let for residence, education, business, trade or storage. The material date for ascertaining whether the plot is "premises" for purposes of S. 6 is the date of letting and not the date on which the application for fixation of standard rent is made by the tenant or the landlord. We agree with the High Court that the plot in dispute could not be regarded as "premises" inviting the application of Part II of the Act. The application filed by the appellant under S. 11 for fixation of standard rent was therefore not maintainable. | 0[ds]There is no dispute that Part II applied to the area in which the plot is situate; but before the appellant could maintain an application for fixation of standard rent under S. 11, she had to establish that the plot of land issued was "premises" within the meaning of S. 5 (8) of the Act and that it was let for residence, education, business, trade or storage. For the purposes of this appeal, it is unnecessary to consider whether the plot was let for residence, education, business, trade or storage.Reading S. 5 sub-cl. (8) with S. 6 (1), it is manifest that Part II of the Act can apply in areas specified in Sch. II to lands (not being used for agricultural purposes) let for residence, education, business, trade or storage. The material date for ascertaining whether the plot is "premises" for purposes of S. 6 is the date of letting and not the date on which the application for fixation of standard rent is made by the tenant or the landlord. We agree with the High Court that the plot in dispute could not be regarded as "premises" inviting the application of Part II of the Act. The application filed by the appellant under S. 11 for fixation of standard rent was therefore not maintainable. | 0 | 1,000 | 254 | ### Instruction:
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Shah, J.1. Plot No. 68 Town Planning Scheme No. 1 Jamalpur Ahmedabad, part of survey No. 405 Mouje Rajpur-Hirpur admeasuring approximately 38 Gunthas was owned by Bai Jekor and her two sisters. By a lease dated October 15, 1934, this plot of land was granted in lease by the owners in perpetuity to Gajjar Ramanlal Gordhandas and his brother at an annual rental of Rs. 558. The lessees - Gajjars - sublet by a lease dated February 7, 1946, the plot, also in perpetuity to Narsaji Chenaji Marwadi - hereinafter referred to as the respondent - at an annual rental of Rs. 1,425. The respondent by deed dated April 25, 1947, sublet the plot to Subhadra - hereinafter referred to as the appellant - at an annual rental of Rs. 2,225. In all these three deeds, it was recited that the lessees may construct buildings on the land and for obtaining sanction in that behalf, the lessors shall make applications to the Collector or any other authority for that purpose. The plot on the dates of the three leases was assessed for agricultural purposes. Under the Bombay Land Revenue Code V of 1879, land assessed for agricultural purposes may be used for non-agricultural purpose if permission in that behalf is granted by the Collector. The appellant applied for permission for conversion of user of the land to non-agricultural purposes, and the Collector of Ahmedabad by order dated November 11, 1949, sanctioned conversion of the user. Thereafter, the appellant by application dated October 27, 1950, applied to the Court of Small Causes, Ahmedabad for fixation of standard rent of the plot under S. 11 of the Bombay Rents. Hotel and Lodging Houses Rates Control Act. 57 of 1947 - hereinafter referred to as the Act. The respondent contended that the land when granted in lease being agricultural, the provisions of Bombay Act did not apply hereto and the application was not maintainable. The Court of Small Causes upheld the contention of the respondent and dismissed the application. This order was confirmed in appeal to the District Court at Ahmedabad and in a revision application to the High Court of Judicature at Bombay. The appellant has, with special leave, appealed to this Court against the order of the High Court.2. It is common ground that till November 11, 1949, the plot was assessed for agricultural purposes under the Bombay Land Revenue Code. In the year 1947, the plot was undoubtedly lying fallow, out or that account, the user of the land cannot be deemed to be altered. User of the land could only be altered by the order of the Collector granted under S. 65 of the Bombay Land Revenue Code. Section 11 of the Bombay Act 57 of 1947 enables a competent Court upon application made to it for that purpose to fix standard rent of any premises. But S. 11 is in Part II of the Act and by S. 6 Cl. (1), it is provided that in areas specified in Schedule I, Part II applies to premises let for residence, education business, trade to storage. There is no dispute that Part II applied to the area in which the plot is situate; but before the appellant could maintain an application for fixation of standard rent under S. 11, she had to establish that the plot of land issued was "premises" within the meaning of S. 5 (8) of the Act and that it was let for residence, education, business, trade or storage. For the purposes of this appeal, it is unnecessary to consider whether the plot was let for residence, education, business, trade or storage. The expression "premises" is defined by S. 5 (8) and the material part of the definition is :"In this Act, unless there is anything repugnant to the subject or context -. . . . . . . . . . . . . . . . . .(8) "premises" means -(a) any land not being used for agricultural purposes.(b) any building or part of a building let separately (other than a farm building) including -(i) the garden, grounds, garages an5b d outhouses if any, appurtenant to such building or part of a building.(ii) any furniture supplied by the landlord for use in such building or part of a building.(iii) any fittings affixed to such building or part of a building for the more beneficial enjoyment thereof,....... ........ ........ ..........."3. Reading S. 5 sub-cl. (8) with S. 6 (1), it is manifest that Part II of the Act can apply in areas specified in Sch. II to lands (not being used for agricultural purposes) let for residence, education, business, trade or storage. The material date for ascertaining whether the plot is "premises" for purposes of S. 6 is the date of letting and not the date on which the application for fixation of standard rent is made by the tenant or the landlord. We agree with the High Court that the plot in dispute could not be regarded as "premises" inviting the application of Part II of the Act. The application filed by the appellant under S. 11 for fixation of standard rent was therefore not maintainable.
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0
### Explanation:
There is no dispute that Part II applied to the area in which the plot is situate; but before the appellant could maintain an application for fixation of standard rent under S. 11, she had to establish that the plot of land issued was "premises" within the meaning of S. 5 (8) of the Act and that it was let for residence, education, business, trade or storage. For the purposes of this appeal, it is unnecessary to consider whether the plot was let for residence, education, business, trade or storage.Reading S. 5 sub-cl. (8) with S. 6 (1), it is manifest that Part II of the Act can apply in areas specified in Sch. II to lands (not being used for agricultural purposes) let for residence, education, business, trade or storage. The material date for ascertaining whether the plot is "premises" for purposes of S. 6 is the date of letting and not the date on which the application for fixation of standard rent is made by the tenant or the landlord. We agree with the High Court that the plot in dispute could not be regarded as "premises" inviting the application of Part II of the Act. The application filed by the appellant under S. 11 for fixation of standard rent was therefore not maintainable.
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THE STATE OF GUJARAT Vs. MANSUKHBHAI KANJIBHAI SHAH | public servant to achieve the purpose of punishing and curbing corruption among public servants. Hence, it would be inappropriate to limit the contents of the definition clause by a construction which would be against the spirit of the statute. Bearing in mind this principle, when we consider the case of the appellant, we have no doubt that he is a public servant within the meaning of Section 2(c) of the Act. Clause (viii) of Section 2(c) of the present Act makes any person, who holds an office by virtue of which he is authorised or required to perform any public duty, to be a public servant. The word office is of indefinite connotation and, in the present context, it would mean a position or place to which certain duties are attached and has an existence which is independent of the persons who fill it. (emphasis supplied) 49. In order to appreciate the amplitude of the word public servant, the relevance of the term public duty cannot be disregarded. Public duty is defined under Section 2(b) of the PC Act, which is reproduced below: 2(b) public duty means a duty in the discharge of which the State, the public or the community at large has an interest. 50. Evidently, the language of Section 2(b) of the PC Act indicates that any duty discharged wherein State, the public or community at large has any interest is called a public duty. The first explanation to Section 2 further clarifies that any person who falls in any of the categories stated under Section 2 is a public servant whether or not appointed by the government. The second explanation further expands the ambit to include every person who de facto discharges the functions of a public servant, and that he should not be prevented from being brought under the ambit of public servant due to any legal infirmities or technicalities. 51. In the present case, on a prima-facie evaluation of the statements of the Gaurav D. Mehta (the Vice-Chancellor); Mr. Pragneshkumar Rameshbhai Trivedi (account officer of Sumandeep Vidhyapith University) and other witnesses it appears that the present respondent was the final authority with regard to the grant of admission, collection of fees and donation amount. 52. The charge sheet specifically discloses that the respondent allegedly was collecting certain extra amount over the prescribed fees on the pretext of allowing the students to fill up their examination forms. Therefore, paying the respondent the alleged amount was a condition precedent before filling up the forms, to appear for the examinations. Specifically, in the complaint, it was alleged that the respondent had demanded an amount of Rupees Twenty Lakhs to be paid to the co-accused Bharat Savant, failing which the daughter of the complainant would not have been permitted to appear in the examination. In our opinion, the fact that there were a large number of cheques which were found during the raid is more than sufficient to establish a grave suspicion as to the commission of the alleged offence. 53. The respondent has vehemently stressed upon the fact that he is admittedly a trustee of the Sumandeep Charitable Trust and has no connection with the Sumandeep University. But, it ought to be noted that the courts below have failed to analyze the connection between the trust and the University, as well as the relationship of the respondent with the university. Prima facie, a grave suspicion is made out that the respondent was rendering his service by dealing with the students and the examination aspect of the University. But a detailed appreciation of evidence is called for before one can reach a conclusion as to the exact position of the respondent vis-à-vis the University. 54. At this stage, we may note that the jurisdiction of this Court, with regards to Section 227 of CrPC, is limited and should not be excercised by conducting roving enquiries on the aspect of factual inferences. This Court, in Union of India Vs. Prafulla Kumar Samal, 1979 (3) SCC 4 , had an occasion to consider the scope of Section 227 CrPC and it held as under: 7. Section 227 of the Code runs thus: If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing. The words not sufficient ground for proceeding against the accused clearly show that the Judge is not a mere post office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really his function after the trial starts. At the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. The sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him. 55. Further, in Sajjan Kumar v. Central Bureau of Investigation, 2010 (9) SCC 368 , this Court, inter alia, observed : 21. On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge: … (ii) Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing a charge and proceeding with the trial… | 1[ds]22. There is no gainsaying that nations are built upon trust. It is inevitable that in a democracy one needs to rely on those with power and influence and to trust them of being transparent and fair. There is no doubt that any action which is driven by the self- interest of these powerful individuals, rather than the public interest, destroys that trust. Where this becomes the norm, democracy, the economy and the rule of law, all take a beating, ultimately putting the whole nation at risk. Corrupt societies often spring from the examples set at the highest levels of government, but small-scale corruption can be equally insidious. In this regard, the PC Act was formulated to bring about transparency and honesty in public life, as indicated by its objects and reasons. We need to keep the aforesaid legislative intention in mind while interpreting the provisions of the PC Act24. The golden rule of interpretation for any penal legislation is to interpret the same strictly, unless any constitutional considerations are involved, and in cases of ambiguity, the benefit of the same should enure in favour of the accused. Having said so, we need to clarify that strict interpretation does not necessarily mean literal interpretation in all cases, rather the interpretation should have regards to the genuine import of the words, taken in their usual sense [refer Commissioner of Customs (Import), Mumbai v. Dilip Kumar & Company, (2018) 9 SCC 1 ]25. However, we are concerned herein with interpreting the provisions of the PC Act. There is no dispute that corruption in India is pervasive. Its impact on the nation is more pronounced, due to the fact that India is still a developing economy. Presently, it can be stated that corruption in India has become an issue which affects all walks of life. In this context, we must state that although anti-corruption laws are fairly stringent in India, the percolation and enforcement of the same are sometimes criticized as being ineffective. Due to this, the constitutional aspirations of economic and social justice are sacrificed on a daily basis. It is in the above context that we need to resolve the issues concerned hereinherein. It is a settled law that technical definitions under one statute should not be imported to another statute which is not in pari materia with the first. The UGC Act and the PC Act are enactments which are completely distinct in their purpose, operation and object. The preamble of the UGC Act states that it is an Act to make provision for the co-ordination and determination of standards in Universities, and for that purpose, to establish a University Grants Commission. On the other hand, the PC Act is an enactment meant to curb the social evil of corruption in the country. As such, the extension of technical definitions used under one Act to the other might not be appropriate, as the two Acts are not in pari materia with one anotherIt is for the same reasoning that we are of the opinion that the High Courts reliance on the judgment of this Court in Orissa Lift Irrigation Corporation Ltd. v. Rabi Sankar Patro, (2018) 1 SCC 468 was not appropriate, as the same was with reference to enactments relating to administration/regulation of universities, and is unconnected with the objects of the PC Act33. This brings us to the conclusion that purport of UGC Act cannot be borrowed under the PC Act, and that an independent meaning needs to be provided for the term University as occurring under the PC Act. In India, there are 12,206 Universities under Section 2(f) and 12B of the UGC Act, as of 31.07.2019. While there are about 124 deemed universities across India, as of 23.06.2008. The education sector in India has seen a general rise. There is no dispute that the education sector, which is a very important service sector in the country, has seen various scandals34. On a perusal of Section 2(c) of the PC Act, we may observe that the emphasis is not on the position held by an individual, rather, it is on the public duty performed by him/her. In this regard, the legislative intention was to not provide an exhaustive list of authorities which are covered, rather a general definition of public servant is provided thereunder. This provides an important internal evidence as to the definition of the term University35. The use of any is critical in our understanding as to the term University. We are aware of the line of authorities, wherein this Court has reduced the impact of term any to not mean every [See Hira Devi v. District Board, Shahjahanpur, (1952) S.C.R. 1122]. However, we cannot accept such a view as the context in which the present dispute emanates, differs from the above44. As discussed earlier, the object of the PC Act was not only to prevent the social evil of bribery and corruption, but also to make the same applicable to individuals who might conventionally not be considered public servants. The purpose under the PC Act was to shift focus from those who are traditionally called public officials, to those individuals who perform public duties. Keeping the same in mind, as rightly submitted by the learned senior counsel for the appellant-State, it cannot be stated that a Deemed University and the officials therein, perform any less or any different a public duty, than those performed by a University simpliciter, and the officials therein45. Therefore, for all the above reasons, we are of the opinion that the High Court was incorrect in holding that a Deemed University is excluded from the ambit of the term University under Section 2(c)(xi) of the PC Act50. Evidently, the language of Section 2(b) of the PC Act indicates that any duty discharged wherein State, the public or community at large has any interest is called a public duty. The first explanation to Section 2 further clarifies that any person who falls in any of the categories stated under Section 2 is a public servant whether or not appointed by the government. The second explanation further expands the ambit to include every person who de facto discharges the functions of a public servant, and that he should not be prevented from being brought under the ambit of public servant due to any legal infirmities or technicalities51. In the present case, on a prima-facie evaluation of the statements of the Gaurav D. Mehta (the Vice-Chancellor); Mr. Pragneshkumar Rameshbhai Trivedi (account officer of Sumandeep Vidhyapith University) and other witnesses it appears that the present respondent was the final authority with regard to the grant of admission, collection of fees and donation amount52. The charge sheet specifically discloses that the respondent allegedly was collecting certain extra amount over the prescribed fees on the pretext of allowing the students to fill up their examination forms. Therefore, paying the respondent the alleged amount was a condition precedent before filling up the forms, to appear for the examinations. Specifically, in the complaint, it was alleged that the respondent had demanded an amount of Rupees Twenty Lakhs to be paid to the co-accused Bharat Savant, failing which the daughter of the complainant would not have been permitted to appear in the examination. In our opinion, the fact that there were a large number of cheques which were found during the raid is more than sufficient to establish a grave suspicion as to the commission of the alleged offenceBut, it ought to be noted that the courts below have failed to analyze the connection between the trust and the University, as well as the relationship of the respondent with the university. Prima facie, a grave suspicion is made out that the respondent was rendering his service by dealing with the students and the examination aspect of the University. But a detailed appreciation of evidence is called for before one can reach a conclusion as to the exact position of the respondent vis-à-vis the University54. At this stage, we may note that the jurisdiction of this Court, with regards to Section 227 of CrPC, is limited and should not be excercised by conducting roving enquiries on the aspect of factual inferencesThis Court, in Union of India Vs. Prafulla Kumar Samal, 1979 (3) SCC 4 , had an occasion to consider the scope of Section 227 CrPC and it held as under:7. Section 227 of the Code runs thus:If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doingThe words not sufficient ground for proceeding against the accused clearly show that the Judge is not a mere post office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really his function after the trial starts. At the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. The sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him55. Further, in Sajjan Kumar v. Central Bureau of Investigation, 2010 (9) SCC 368 , this Court, inter alia, observed :(ii) Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing a charge and proceeding with the trial… | 1 | 7,121 | 1,870 | ### 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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public servant to achieve the purpose of punishing and curbing corruption among public servants. Hence, it would be inappropriate to limit the contents of the definition clause by a construction which would be against the spirit of the statute. Bearing in mind this principle, when we consider the case of the appellant, we have no doubt that he is a public servant within the meaning of Section 2(c) of the Act. Clause (viii) of Section 2(c) of the present Act makes any person, who holds an office by virtue of which he is authorised or required to perform any public duty, to be a public servant. The word office is of indefinite connotation and, in the present context, it would mean a position or place to which certain duties are attached and has an existence which is independent of the persons who fill it. (emphasis supplied) 49. In order to appreciate the amplitude of the word public servant, the relevance of the term public duty cannot be disregarded. Public duty is defined under Section 2(b) of the PC Act, which is reproduced below: 2(b) public duty means a duty in the discharge of which the State, the public or the community at large has an interest. 50. Evidently, the language of Section 2(b) of the PC Act indicates that any duty discharged wherein State, the public or community at large has any interest is called a public duty. The first explanation to Section 2 further clarifies that any person who falls in any of the categories stated under Section 2 is a public servant whether or not appointed by the government. The second explanation further expands the ambit to include every person who de facto discharges the functions of a public servant, and that he should not be prevented from being brought under the ambit of public servant due to any legal infirmities or technicalities. 51. In the present case, on a prima-facie evaluation of the statements of the Gaurav D. Mehta (the Vice-Chancellor); Mr. Pragneshkumar Rameshbhai Trivedi (account officer of Sumandeep Vidhyapith University) and other witnesses it appears that the present respondent was the final authority with regard to the grant of admission, collection of fees and donation amount. 52. The charge sheet specifically discloses that the respondent allegedly was collecting certain extra amount over the prescribed fees on the pretext of allowing the students to fill up their examination forms. Therefore, paying the respondent the alleged amount was a condition precedent before filling up the forms, to appear for the examinations. Specifically, in the complaint, it was alleged that the respondent had demanded an amount of Rupees Twenty Lakhs to be paid to the co-accused Bharat Savant, failing which the daughter of the complainant would not have been permitted to appear in the examination. In our opinion, the fact that there were a large number of cheques which were found during the raid is more than sufficient to establish a grave suspicion as to the commission of the alleged offence. 53. The respondent has vehemently stressed upon the fact that he is admittedly a trustee of the Sumandeep Charitable Trust and has no connection with the Sumandeep University. But, it ought to be noted that the courts below have failed to analyze the connection between the trust and the University, as well as the relationship of the respondent with the university. Prima facie, a grave suspicion is made out that the respondent was rendering his service by dealing with the students and the examination aspect of the University. But a detailed appreciation of evidence is called for before one can reach a conclusion as to the exact position of the respondent vis-à-vis the University. 54. At this stage, we may note that the jurisdiction of this Court, with regards to Section 227 of CrPC, is limited and should not be excercised by conducting roving enquiries on the aspect of factual inferences. This Court, in Union of India Vs. Prafulla Kumar Samal, 1979 (3) SCC 4 , had an occasion to consider the scope of Section 227 CrPC and it held as under: 7. Section 227 of the Code runs thus: If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing. The words not sufficient ground for proceeding against the accused clearly show that the Judge is not a mere post office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really his function after the trial starts. At the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. The sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him. 55. Further, in Sajjan Kumar v. Central Bureau of Investigation, 2010 (9) SCC 368 , this Court, inter alia, observed : 21. On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge: … (ii) Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing a charge and proceeding with the trial…
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on the public duty performed by him/her. In this regard, the legislative intention was to not provide an exhaustive list of authorities which are covered, rather a general definition of public servant is provided thereunder. This provides an important internal evidence as to the definition of the term University35. The use of any is critical in our understanding as to the term University. We are aware of the line of authorities, wherein this Court has reduced the impact of term any to not mean every [See Hira Devi v. District Board, Shahjahanpur, (1952) S.C.R. 1122]. However, we cannot accept such a view as the context in which the present dispute emanates, differs from the above44. As discussed earlier, the object of the PC Act was not only to prevent the social evil of bribery and corruption, but also to make the same applicable to individuals who might conventionally not be considered public servants. The purpose under the PC Act was to shift focus from those who are traditionally called public officials, to those individuals who perform public duties. Keeping the same in mind, as rightly submitted by the learned senior counsel for the appellant-State, it cannot be stated that a Deemed University and the officials therein, perform any less or any different a public duty, than those performed by a University simpliciter, and the officials therein45. Therefore, for all the above reasons, we are of the opinion that the High Court was incorrect in holding that a Deemed University is excluded from the ambit of the term University under Section 2(c)(xi) of the PC Act50. Evidently, the language of Section 2(b) of the PC Act indicates that any duty discharged wherein State, the public or community at large has any interest is called a public duty. The first explanation to Section 2 further clarifies that any person who falls in any of the categories stated under Section 2 is a public servant whether or not appointed by the government. The second explanation further expands the ambit to include every person who de facto discharges the functions of a public servant, and that he should not be prevented from being brought under the ambit of public servant due to any legal infirmities or technicalities51. In the present case, on a prima-facie evaluation of the statements of the Gaurav D. Mehta (the Vice-Chancellor); Mr. Pragneshkumar Rameshbhai Trivedi (account officer of Sumandeep Vidhyapith University) and other witnesses it appears that the present respondent was the final authority with regard to the grant of admission, collection of fees and donation amount52. The charge sheet specifically discloses that the respondent allegedly was collecting certain extra amount over the prescribed fees on the pretext of allowing the students to fill up their examination forms. Therefore, paying the respondent the alleged amount was a condition precedent before filling up the forms, to appear for the examinations. Specifically, in the complaint, it was alleged that the respondent had demanded an amount of Rupees Twenty Lakhs to be paid to the co-accused Bharat Savant, failing which the daughter of the complainant would not have been permitted to appear in the examination. In our opinion, the fact that there were a large number of cheques which were found during the raid is more than sufficient to establish a grave suspicion as to the commission of the alleged offenceBut, it ought to be noted that the courts below have failed to analyze the connection between the trust and the University, as well as the relationship of the respondent with the university. Prima facie, a grave suspicion is made out that the respondent was rendering his service by dealing with the students and the examination aspect of the University. But a detailed appreciation of evidence is called for before one can reach a conclusion as to the exact position of the respondent vis-à-vis the University54. At this stage, we may note that the jurisdiction of this Court, with regards to Section 227 of CrPC, is limited and should not be excercised by conducting roving enquiries on the aspect of factual inferencesThis Court, in Union of India Vs. Prafulla Kumar Samal, 1979 (3) SCC 4 , had an occasion to consider the scope of Section 227 CrPC and it held as under:7. Section 227 of the Code runs thus:If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doingThe words not sufficient ground for proceeding against the accused clearly show that the Judge is not a mere post office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really his function after the trial starts. At the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. The sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him55. Further, in Sajjan Kumar v. Central Bureau of Investigation, 2010 (9) SCC 368 , this Court, inter alia, observed :(ii) Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing a charge and proceeding with the trial…
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Ram Dayal Vs. Narbada & Another | Mathew, J. 1. This is an appeal by special leave, from a decree of the High Court of Rajasthan passed in appeal by which it dismissed the suit for recovery of possession of the plaint property filed by the appellant. 2. One Ram Prasad was the owner of the property in question. He was not heard of by his wife Pani since 1950 for more than 7 years. On June 4, 1962, she made a gift of the property to the appellant, Ram Dayal, on the basis that Ram prasad was dead. 3. The appellant, alleging that respondents forcibly took possession of the property, filed the suit for declaration that he was the owner of the property and for recovery of its possession. 4. The respondents contended that Ram Prasad was alive on June 4, 1962, that his wife had no right to execute the gift deed and that the appellant was not in possession of the properly at any time. 5. The trial Court held that there was no proof that Ram Prasad was dead on June 4, 1962, and, therefore, his wife was not competent to execute the gift deed and dismissed the suit. 6. In appeal, the Court held that Ram Prasad must be deemed to have been dead at the when the gift deed was executed by his wife and so the gift was valid and reversed the decree of the trial Court. 7. It was against this decree that the appeal was filed before the High Court. The High Court reversed the decree of the appellate Court and restored the decree of the trial Court on the ground that there was no proof that Ram Prasad was dead on the date of the execution of the gift deed. 8. The respondents have filed an application for revocation of the special leave to appeal on the ground that the appellant did not avail himself of the provisions for leave to appeal to a Division Bench of the High Court and that the value of the property in question is only Rupees 200/-. 9. We heard counsel on both sides on the question of the revocation of the special leave to appeal and we are of the opinion that the leave to appeal should be revoked. 10. Section 18 (2) of the Rajasthan High Court Ordinance, 1949 (Ordinance No. XV of 1949) provides :"Notwithstanding anything hereinbefore provided, an appeal shall lie to the High Court from a judgment of one Judge of the High Court made in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the High Court where the Judge who passed the judgment declares that the case is a fit one for appeal." Rule 97 of the Rajasthan High Court Rules, 1952, states that where a special Appeal from the judgment of one Judge does not lie unless such Judge has declared that the case is a fit one for appeal, an application for such declaration may be made orally before or at the time when the judgment is delivered and that the Court shall thereupon record an arder granting or refusing to grant such declaration. In this case, it is admitted that no application was made at or before the time when the judgment was delivered for leave to appeal to a Division Bench. The fact that no such application was made was also not stated in the petition for special leave. 11. In the Union of India v. Kishorilal Gupta and Bros., AIR 1959 SC 1362 the Court said that although this Court has jurisdiction to entertain an appeal against the Order of a Court when an appeal lay from that order to another Court. The Court should not give special leave and thereby short-circuit the legal procedure prescribed. In the State of Bombay v. M/s. Ratilal Vadilal, AIR 1961 SC 1106 this Court held that the proper course for an appellant is to exhaust all his remedies (including those in the High Court) before invoking the jurisdiction of this Court under Art. 136. 12. We are also of the opinion that the value of the property in question is too small and that the question of law involved is not of such paramount public importance that we would be justified in entertaining the appeal. It has become imperative that no case be taken on the file of this Court which does not rise to the measure of importance which this Court has set for itself. One case is not just one case more, and does not stop with being just one more case. By revoking the special leave we would be discouraging future applications for special leave of a similar kind, and thereby enforcing those rigorous standards in this Courts judicial administration which alone will give us the freshness and vigour of thought and spirit that are indispensable for wise decisions in the causes that are legitimately committed to us (see Frankfurter, J.) in Ex parte Peru, (1943) 318 US 578. Time is required for adequate reflection in those causes. Reflection is a slow process. Wisdom, like good wine, requires maturing (see Kinsella v. Krueger, (1956) 351 US 470 at pp. 483-485). | 0[ds]are also of the opinion that the value of the property in question is too small and that the question of law involved is not of such paramount public importance that we would be justified in entertaining the appeal. It has become imperative that no case be taken on the file of this Court which does not rise to the measure of importance which this Court has set for itself. One case is not just one case more, and does not stop with being just one more case. By revoking the special leave we would be discouraging future applications for special leave of a similar kind, and thereby enforcing those rigorous standards in this Courts judicial administration which alone will give us the freshness and vigour of thought and spirit that are indispensable for wise decisions in the causes that are legitimately committed to us (see Frankfurter, J.) inEx parte Peru, (1943) 318 US 578.Time is required for adequate reflection in those causes. Reflection is a slow process. Wisdom, like good wine, requires maturing (see Kinsella v. Krueger, (1956) 351 US 470 at pp. 483-485). | 0 | 970 | 212 | ### Instruction:
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Mathew, J. 1. This is an appeal by special leave, from a decree of the High Court of Rajasthan passed in appeal by which it dismissed the suit for recovery of possession of the plaint property filed by the appellant. 2. One Ram Prasad was the owner of the property in question. He was not heard of by his wife Pani since 1950 for more than 7 years. On June 4, 1962, she made a gift of the property to the appellant, Ram Dayal, on the basis that Ram prasad was dead. 3. The appellant, alleging that respondents forcibly took possession of the property, filed the suit for declaration that he was the owner of the property and for recovery of its possession. 4. The respondents contended that Ram Prasad was alive on June 4, 1962, that his wife had no right to execute the gift deed and that the appellant was not in possession of the properly at any time. 5. The trial Court held that there was no proof that Ram Prasad was dead on June 4, 1962, and, therefore, his wife was not competent to execute the gift deed and dismissed the suit. 6. In appeal, the Court held that Ram Prasad must be deemed to have been dead at the when the gift deed was executed by his wife and so the gift was valid and reversed the decree of the trial Court. 7. It was against this decree that the appeal was filed before the High Court. The High Court reversed the decree of the appellate Court and restored the decree of the trial Court on the ground that there was no proof that Ram Prasad was dead on the date of the execution of the gift deed. 8. The respondents have filed an application for revocation of the special leave to appeal on the ground that the appellant did not avail himself of the provisions for leave to appeal to a Division Bench of the High Court and that the value of the property in question is only Rupees 200/-. 9. We heard counsel on both sides on the question of the revocation of the special leave to appeal and we are of the opinion that the leave to appeal should be revoked. 10. Section 18 (2) of the Rajasthan High Court Ordinance, 1949 (Ordinance No. XV of 1949) provides :"Notwithstanding anything hereinbefore provided, an appeal shall lie to the High Court from a judgment of one Judge of the High Court made in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the High Court where the Judge who passed the judgment declares that the case is a fit one for appeal." Rule 97 of the Rajasthan High Court Rules, 1952, states that where a special Appeal from the judgment of one Judge does not lie unless such Judge has declared that the case is a fit one for appeal, an application for such declaration may be made orally before or at the time when the judgment is delivered and that the Court shall thereupon record an arder granting or refusing to grant such declaration. In this case, it is admitted that no application was made at or before the time when the judgment was delivered for leave to appeal to a Division Bench. The fact that no such application was made was also not stated in the petition for special leave. 11. In the Union of India v. Kishorilal Gupta and Bros., AIR 1959 SC 1362 the Court said that although this Court has jurisdiction to entertain an appeal against the Order of a Court when an appeal lay from that order to another Court. The Court should not give special leave and thereby short-circuit the legal procedure prescribed. In the State of Bombay v. M/s. Ratilal Vadilal, AIR 1961 SC 1106 this Court held that the proper course for an appellant is to exhaust all his remedies (including those in the High Court) before invoking the jurisdiction of this Court under Art. 136. 12. We are also of the opinion that the value of the property in question is too small and that the question of law involved is not of such paramount public importance that we would be justified in entertaining the appeal. It has become imperative that no case be taken on the file of this Court which does not rise to the measure of importance which this Court has set for itself. One case is not just one case more, and does not stop with being just one more case. By revoking the special leave we would be discouraging future applications for special leave of a similar kind, and thereby enforcing those rigorous standards in this Courts judicial administration which alone will give us the freshness and vigour of thought and spirit that are indispensable for wise decisions in the causes that are legitimately committed to us (see Frankfurter, J.) in Ex parte Peru, (1943) 318 US 578. Time is required for adequate reflection in those causes. Reflection is a slow process. Wisdom, like good wine, requires maturing (see Kinsella v. Krueger, (1956) 351 US 470 at pp. 483-485).
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are also of the opinion that the value of the property in question is too small and that the question of law involved is not of such paramount public importance that we would be justified in entertaining the appeal. It has become imperative that no case be taken on the file of this Court which does not rise to the measure of importance which this Court has set for itself. One case is not just one case more, and does not stop with being just one more case. By revoking the special leave we would be discouraging future applications for special leave of a similar kind, and thereby enforcing those rigorous standards in this Courts judicial administration which alone will give us the freshness and vigour of thought and spirit that are indispensable for wise decisions in the causes that are legitimately committed to us (see Frankfurter, J.) inEx parte Peru, (1943) 318 US 578.Time is required for adequate reflection in those causes. Reflection is a slow process. Wisdom, like good wine, requires maturing (see Kinsella v. Krueger, (1956) 351 US 470 at pp. 483-485).
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State Of U.P Vs. Shyam Lal Sharma | inasmuch as the proposal for retirement was approved, therefore, there was approval of the letter dated 14 February, 1962 and that letter was the basis of the order of compulsory retirement.16. The letter dated 14 February, 1962 was in four paragraphs. The concluding paragraph contained a proposal for compulsory retirement of the plaintiff-respondent. The concluding paragraph did not contain any stigma or imputation against the plaintiff-respondent. In the preceding paragraph 2 the author of the letter wrote that "He is considered to be a bad lot incorrigible and no longer useful." It was said on behalf of the plaintiff-respondent that there was stigma in the words incorrigible and no longer useful and the order of compulsory retirement was based on that stigma. Only the proposal for compulsory retirement was sent for approval. The order of compulsory retirement cannot be stated to sustain the plea of punishment by extracting opinions expressed by the authorities in regard to the officer in the past.17. This Court in Saksenas case, (AIR 1967 SC 1264 ) (supra) said "where an order requiring a Government servant to retire compulsorily contains express words from which a stigma can be inferred, that order will amount to removal within the meaning of Art. 311. But where there are no express words in the order we cannot delve into Secretariat files to discover whether some kind of stigma can be inferred on such research"In Saksenas case (supra) the order was as follows:"In pursuance of the orders contained in General Administration Department memorandum No. 433-258-I (iii)/63 dated the 28th February 1963, the State Government have decided to retire you with effect from the afternoon of the 31st December 1963."The relevant rule in Saksenas case (supra) conferred power on the Government to retire an officer after he attains the age of 55 years on three months notice without assigning any reason. The rule stated that the power would normally be exercised to weed out unsuitable employees after they have attained the age of 55 years.18. It was contended on behalf of Saksena that the order of retirement cast a stigma. This Court in Saksenas case (AIR 1967 SC 1264 ) referred to two earlier decisions of this Court to illustrate as to whether the order of retirement itself cast a stigma. One was Jagdish Mitter v. Union of India AIR 1964 SC 449 where the order was in these terms."Shri Jagdish Mitter, a temporary 2nd Division Clerk of this office having been found undesirable to be retained in Government service is hereby served with a months notice of discharge with effect from November 1, 1949".The other was the decision in (AIR 1967 SC 1260 ) (supra) where the order of retirement was as follows:"I am directed to say that the Governor has been pleased to order in the public interest under Art. 465A and Note (1) thereof of the Civil Service Regulations, the compulsory retirement with effect from September 1, 1960 of Shri Madan Mohan Nagar, Director State Museum, Lucknow who completed 52 years of age on July 1, 1960 and 28 years and 3 months of qualifying service on 31-5-1960 as he has outlived his utility".In Nagars case, (supra) this Court held that the words "respondent had outlived his utility" occurring in the order attached stigma to the officer. In Saksenas case, (supra) the order was that the Government decided to retire the officer with effect from 31 December 1963 and as the order did not contain any words from which stigma could be inferred it could not be said that the order of compulsory retirement amount to an order of removal in Saksenas case, (supra). This Court in Shyam Lals case, (AIR 1954 SC 369 ) (supra) held that the mere fact that the Government servant was compulsorily retired before he reached the age of superannuation could not in itself be a stigma.19. The ruling in Saksenas case, (AIR 1967 SC 1264 ) (supra) is also that where there are no words in the order of compulsory retirement which throw any stigma there should not be any inquiry into Government files to discover whether any remark amounting to stigma could be found in the files. The reason is that it is the order of compulsory retirement which alone is for examination. If the order itself does not contain any imputation or charge against the officer the fact that "considerations of misconduct or misbehaviour weighed with the Government in coming to its conclusion whether any action could be taken under rule 278 does not amount to any imputation or charge against the officer". This was the view empressed by this Court in Dalip Singhs case, AIR 1960 SC 1305 (supra).In that case the relevant rule was as follows:"The State reserves to itself the right to retire any of its employees on pension on political or on other reasons".Where the authorities can make an order of compulsory retirement for any reason and no reason is mentionany in the order it cannot be predicated that the order of compulsory retirement has an inherent stigma in the order. In the present case, the fact found is that the order of compulsory retirement could not be said to be on account of malice.20. Unless it is established from the order of compulsory retirement itself that a charge or imputation against the officer is made the condition of the exercise of that power or that by the order the officer is losing benefits already earned, the order of retirement cannot be said to be one for dismissal or removal in the nature of penalty or punishment. In the present case, the order of compulsory retirement does not suffer from any such vice.21. The High Court fell into the error of holding that the order of compulsory retirement in the present case contained stigma by going behind the order of retirement and also by misreading the letter dated 14 February, 1962 in the manner not warranted by the letter itself containing a mere proposal for compulsory retirement. | 1[ds]14. The following propositions can be extracted from these decisions. First, in ascertaining whether the order of compulsory retirement is one of punishment it has to be ascertained whether in the order of compulsory retirement there was any element of charge or stigma or imputation or any implication of misbehaviour or incapacity against the officer concerned. Secondly, the order for compulsory retirement will be indicative of punishment or penalty if the order will involve loss of benefits already earned. Thirdly, an order for compulsory retirement on the completion of 25 years of service or an order of compulsory retirement made in the public interest to dispense with further service will not amount to an order for dismissal or removal as there is no element of punishment. Fourthly, an order of compulsory retirement will not be held to be an order in the nature of punishment or penalty on the ground that there is possibility of loss of future prospects, namely, that the officer will not get his pay till he attains the age of superannuation, or will not get an enhanced pension for not being allowed to remain a few years in service and being compulsorily retired.15. Judged by the principles enunciated by this Court it is apparent that the order of compulsory retirement in the present case does not on the face of it contain any stigma or imputation or penalty. It is not the case of the plaintiff-respondent that the order of compulsory retirement involved any loss of benefits already earned or that there was any penalty in the nature of loss of emoluments or pension. It was contended on behalf of the plaintiff-respondent that the reasoning adopted by the Court of Civil and Sessions Judge and upheld by the High Court was correct that the letters dated 16 March, 1962 and 14 February, 1962 established in the present case that there was stigma in these letters and the order of compulsory retirement was based on these letters and therefore the orderwas one of punishment.The letter dated 16 March, 1962 stated that "proposal for compulsory retirement............... is approved". This letter cannot be said to have any stigma or imputation. It was submitted that inasmuch as the proposal for retirement was approved, therefore, there was approval of the letter dated 14 February, 1962 and that letter was the basis of the order of compulsory retirement.16. The letter dated 14 February, 1962 was in four paragraphs. The concluding paragraph contained a proposal for compulsory retirement of the plaintiff-respondent. The concluding paragraph did not contain any stigma or imputation against the plaintiff-respondent. In the preceding paragraph 2 the author of the letter wrote that "He is considered to be a bad lot incorrigible and no longer useful." It was said on behalf of the plaintiff-respondent that there was stigma in the words incorrigible and no longer useful and the order of compulsory retirement was based on that stigma. Only the proposal for compulsory retirement was sent for approval. The order of compulsory retirement cannot be stated to sustain the plea of punishment by extracting opinions expressed by the authorities in regard to the officer in the past.Unless it is established from the order of compulsory retirement itself that a charge or imputation against the officer is made the condition of the exercise of that power or that by the order the officer is losing benefits already earned, the order of retirement cannot be said to be one for dismissal or removal in the nature of penalty or punishment. In the present case, the order of compulsory retirement does not suffer from any such vice.21. The High Court fell into the error of holding that the order of compulsory retirement in the present case contained stigma by going behind the order of retirement and also by misreading the letter dated 14 February, 1962 in the manner not warranted by the letter itself containing a mere proposal for compulsory retirement. | 1 | 2,697 | 706 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
### Input:
inasmuch as the proposal for retirement was approved, therefore, there was approval of the letter dated 14 February, 1962 and that letter was the basis of the order of compulsory retirement.16. The letter dated 14 February, 1962 was in four paragraphs. The concluding paragraph contained a proposal for compulsory retirement of the plaintiff-respondent. The concluding paragraph did not contain any stigma or imputation against the plaintiff-respondent. In the preceding paragraph 2 the author of the letter wrote that "He is considered to be a bad lot incorrigible and no longer useful." It was said on behalf of the plaintiff-respondent that there was stigma in the words incorrigible and no longer useful and the order of compulsory retirement was based on that stigma. Only the proposal for compulsory retirement was sent for approval. The order of compulsory retirement cannot be stated to sustain the plea of punishment by extracting opinions expressed by the authorities in regard to the officer in the past.17. This Court in Saksenas case, (AIR 1967 SC 1264 ) (supra) said "where an order requiring a Government servant to retire compulsorily contains express words from which a stigma can be inferred, that order will amount to removal within the meaning of Art. 311. But where there are no express words in the order we cannot delve into Secretariat files to discover whether some kind of stigma can be inferred on such research"In Saksenas case (supra) the order was as follows:"In pursuance of the orders contained in General Administration Department memorandum No. 433-258-I (iii)/63 dated the 28th February 1963, the State Government have decided to retire you with effect from the afternoon of the 31st December 1963."The relevant rule in Saksenas case (supra) conferred power on the Government to retire an officer after he attains the age of 55 years on three months notice without assigning any reason. The rule stated that the power would normally be exercised to weed out unsuitable employees after they have attained the age of 55 years.18. It was contended on behalf of Saksena that the order of retirement cast a stigma. This Court in Saksenas case (AIR 1967 SC 1264 ) referred to two earlier decisions of this Court to illustrate as to whether the order of retirement itself cast a stigma. One was Jagdish Mitter v. Union of India AIR 1964 SC 449 where the order was in these terms."Shri Jagdish Mitter, a temporary 2nd Division Clerk of this office having been found undesirable to be retained in Government service is hereby served with a months notice of discharge with effect from November 1, 1949".The other was the decision in (AIR 1967 SC 1260 ) (supra) where the order of retirement was as follows:"I am directed to say that the Governor has been pleased to order in the public interest under Art. 465A and Note (1) thereof of the Civil Service Regulations, the compulsory retirement with effect from September 1, 1960 of Shri Madan Mohan Nagar, Director State Museum, Lucknow who completed 52 years of age on July 1, 1960 and 28 years and 3 months of qualifying service on 31-5-1960 as he has outlived his utility".In Nagars case, (supra) this Court held that the words "respondent had outlived his utility" occurring in the order attached stigma to the officer. In Saksenas case, (supra) the order was that the Government decided to retire the officer with effect from 31 December 1963 and as the order did not contain any words from which stigma could be inferred it could not be said that the order of compulsory retirement amount to an order of removal in Saksenas case, (supra). This Court in Shyam Lals case, (AIR 1954 SC 369 ) (supra) held that the mere fact that the Government servant was compulsorily retired before he reached the age of superannuation could not in itself be a stigma.19. The ruling in Saksenas case, (AIR 1967 SC 1264 ) (supra) is also that where there are no words in the order of compulsory retirement which throw any stigma there should not be any inquiry into Government files to discover whether any remark amounting to stigma could be found in the files. The reason is that it is the order of compulsory retirement which alone is for examination. If the order itself does not contain any imputation or charge against the officer the fact that "considerations of misconduct or misbehaviour weighed with the Government in coming to its conclusion whether any action could be taken under rule 278 does not amount to any imputation or charge against the officer". This was the view empressed by this Court in Dalip Singhs case, AIR 1960 SC 1305 (supra).In that case the relevant rule was as follows:"The State reserves to itself the right to retire any of its employees on pension on political or on other reasons".Where the authorities can make an order of compulsory retirement for any reason and no reason is mentionany in the order it cannot be predicated that the order of compulsory retirement has an inherent stigma in the order. In the present case, the fact found is that the order of compulsory retirement could not be said to be on account of malice.20. Unless it is established from the order of compulsory retirement itself that a charge or imputation against the officer is made the condition of the exercise of that power or that by the order the officer is losing benefits already earned, the order of retirement cannot be said to be one for dismissal or removal in the nature of penalty or punishment. In the present case, the order of compulsory retirement does not suffer from any such vice.21. The High Court fell into the error of holding that the order of compulsory retirement in the present case contained stigma by going behind the order of retirement and also by misreading the letter dated 14 February, 1962 in the manner not warranted by the letter itself containing a mere proposal for compulsory retirement.
### Response:
1
### Explanation:
14. The following propositions can be extracted from these decisions. First, in ascertaining whether the order of compulsory retirement is one of punishment it has to be ascertained whether in the order of compulsory retirement there was any element of charge or stigma or imputation or any implication of misbehaviour or incapacity against the officer concerned. Secondly, the order for compulsory retirement will be indicative of punishment or penalty if the order will involve loss of benefits already earned. Thirdly, an order for compulsory retirement on the completion of 25 years of service or an order of compulsory retirement made in the public interest to dispense with further service will not amount to an order for dismissal or removal as there is no element of punishment. Fourthly, an order of compulsory retirement will not be held to be an order in the nature of punishment or penalty on the ground that there is possibility of loss of future prospects, namely, that the officer will not get his pay till he attains the age of superannuation, or will not get an enhanced pension for not being allowed to remain a few years in service and being compulsorily retired.15. Judged by the principles enunciated by this Court it is apparent that the order of compulsory retirement in the present case does not on the face of it contain any stigma or imputation or penalty. It is not the case of the plaintiff-respondent that the order of compulsory retirement involved any loss of benefits already earned or that there was any penalty in the nature of loss of emoluments or pension. It was contended on behalf of the plaintiff-respondent that the reasoning adopted by the Court of Civil and Sessions Judge and upheld by the High Court was correct that the letters dated 16 March, 1962 and 14 February, 1962 established in the present case that there was stigma in these letters and the order of compulsory retirement was based on these letters and therefore the orderwas one of punishment.The letter dated 16 March, 1962 stated that "proposal for compulsory retirement............... is approved". This letter cannot be said to have any stigma or imputation. It was submitted that inasmuch as the proposal for retirement was approved, therefore, there was approval of the letter dated 14 February, 1962 and that letter was the basis of the order of compulsory retirement.16. The letter dated 14 February, 1962 was in four paragraphs. The concluding paragraph contained a proposal for compulsory retirement of the plaintiff-respondent. The concluding paragraph did not contain any stigma or imputation against the plaintiff-respondent. In the preceding paragraph 2 the author of the letter wrote that "He is considered to be a bad lot incorrigible and no longer useful." It was said on behalf of the plaintiff-respondent that there was stigma in the words incorrigible and no longer useful and the order of compulsory retirement was based on that stigma. Only the proposal for compulsory retirement was sent for approval. The order of compulsory retirement cannot be stated to sustain the plea of punishment by extracting opinions expressed by the authorities in regard to the officer in the past.Unless it is established from the order of compulsory retirement itself that a charge or imputation against the officer is made the condition of the exercise of that power or that by the order the officer is losing benefits already earned, the order of retirement cannot be said to be one for dismissal or removal in the nature of penalty or punishment. In the present case, the order of compulsory retirement does not suffer from any such vice.21. The High Court fell into the error of holding that the order of compulsory retirement in the present case contained stigma by going behind the order of retirement and also by misreading the letter dated 14 February, 1962 in the manner not warranted by the letter itself containing a mere proposal for compulsory retirement.
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Taranjeet Singh Mohan Singh Sawhny&Ors Vs. Dist. Dy.Registrar Coop.Societies | the writ petition, the appellants filed an application for interim stay. The learned Single Judge took cognizance of the assertion made in the writ petition that notice of preponement of the date of hearing was not served upon them, but refused to grant stay on the ground that the writ petition was filed after four months of the order passed by respondent No.1 and during the intervening period conveyance deed had already been registered for a sum of Rs.95 lacs and the Society and respondent No.3 had entered into development agreements with builders.14. Shri Mukul Rohatgi, learned senior counsel for the appellants argued that the order passed by respondent No.1 is liable to be declared as nullity because he arbitrarily preponed the date of hearing and decided the application of respondent No.3 without bothering to find out whether the notice issued to the parties about the changed date had been delivered/served. Shri Rohatgi referred to the English translation of the order sheets recorded by respondent No.1, xerox copies of communications dated 15.2.2013 sent by Senior Superintendant of Post Offices, Mumbai City (North) to Ms. Pritha Dave, counsel for respondent No.3 and the counter filed on behalf of respondent No.1 before the High Court to show that the notice issued in terms of the direction given by respondent No.1 on 16.5.2012 was not served upon the appellants. Learned senior counsel then argued that due to non service of notice, the appellants could not appear on 21.5.2012 and on that account their cause has been seriously prejudiced. Shri Rohatgi then submitted that the absence of the counsel/representatives of all the parties except respondent No.3 on 21.5.2012 should have alerted respondent No.1 that there was something wrong with the service of notice and prompted him to make an inquiry to ascertain whether the notice had been served on all the parties, but the concerned officer deliberately did not take any action in this regard and proceeded to close the matter for orders. Shri Rohatgi argued that the explanation given by respondent No.1 for preponing the date of hearing, i.e., fixation of excess number of cases on the particular date, i.e., 19.6.2012 should not be accepted because even on 15.5.2012, the concerned officer must have been aware of the fact that he had already fixed large number of cases on 19.6.2012.15. Shri Shyam Divan, learned senior counsel for respondent No.3, supported the decision of respondent No.1 to prepone the date of hearing by pointing out that the officer concerned was compelled to do so because he was required to decide the application within six months of its institution. Shri Divan referred to letter dated 15/18.2.2013 sent by Senior Superintendent of Post Offices, Mumbai City (North 2) to Ms. Pritha Dave and argued that the intimation given to the appellants? counsel was sufficient to make them aware of the decision taken by respondent No.1 to prepone the date of hearing. Shri Divan submitted that the appellants cannot plead denial of hearing by respondent No.1 as the ground for quashing the order passed by him because their advocate had been duly intimated about the changed date of hearing. However, learned senior counsel could not offer any clarification about the delivery of notice to the sender on 22.5.2012. 16. We have considered the respective arguments and carefully scrutinized the record. 17. By producing xerox copies of the receipt of speed post and two communications dated 15.2.2013 sent by Senior Superintendent of Post Offices, Mumbai City (North) to Ms. Pritha Dave, respondent No.3 has made an attempt to show that the appellants had been informed about the changed date of hearing, but we have not felt convinced. In the first place, the justification offered for preponement of the date of hearing is too weak to be accepted. It is neither the pleaded case of respondent Nos. 1 and 3 nor it has been argued before us that the application filed by respondent No.3 was the only one dealt with by the officer concerned. Rather, the assertion contained in the counter filed by respondent No.1 before the High Court shows that large number of similar cases were handled by the officer. Therefore, it can be presumed that he was aware of the imperative to decide the application within six months. Notwithstanding this, respondent No.1 fixed large number of cases on 19.6.2012. Why he did so has not been explained. Why he singled out the application of respondent No.3 for preponing the date of hearing has also not been explained. Therefore, it is reasonable to infer that the action of respondent No.1 to prepone the date of hearing of the application was founded on extraneous reasons and was totally unwarranted and unjustified.18. Secondly, the documents produced before this Court unmistakably show that notice issued to the appellants to apprise them about the changed date of hearing was not delivered to them. The statement made in paragraph (Z) of the counter affidavit filed by respondent No.1 substantially supports the appellants? assertion that they had not received intimation about preponement of the date of hearing. It also belies the assertion of respondent No.3 that notice was delivered to the appellants before the date of hearing, i.e., 21.5.2012. If the notice had been duly served upon the appellants, then respondent No.1 would have produced the receipt of delivery. His failure to do so leads to an irresistible inference that the appellants were not made aware of the fact that the date of hearing had been changed from 19.6.2012 to 21.5.2012. The documents produced by respondent No.3 do not help us in resolving the controversy regarding service of notice on the appellants. The contents of these documents only adds to the confusion. If the second letter dated 15.2.2013 sent by the Senior Superintendent of Post Office was delivered on 22.5.2012 then we have no option but to hold that the notice issued by the office of respondent No.1 was delivered to the addressee on 22.5.2012, i.e., one day after the date fixed for hearing. | 1[ds]17. By producing xerox copies of the receipt of speed post and two communications dated 15.2.2013 sent by Senior Superintendent of Postth) to Ms. Pritha Dave, respondent No.3 has made an attempt to show that the appellants had been informed about the changed date of hearing, but we have not felt convinced. In the first place, the justification offered for preponement of the date of hearing is too weak to be accepted. It is neither the pleaded case of respondent Nos. 1 and 3 nor it has been argued before us that the application filed by respondent No.3 was the only one dealt with by the officer concerned. Rather, the assertion contained in the counter filed by respondent No.1 before the High Court shows that large number of similar cases were handled by the officer. Therefore, it can be presumed that he was aware of the imperative to decide the application within six months. Notwithstanding this, respondent No.1 fixed large number of cases on 19.6.2012. Why he did so has not been explained. Why he singled out the application of respondent No.3 for preponing the date of hearing has also not been explained. Therefore, it is reasonable to infer that the action of respondent No.1 to prepone the date of hearing of the application was founded on extraneous reasons and was totally unwarranted and unjustified.18. Secondly, the documents produced before this Court unmistakably show that notice issued to the appellants to apprise them about the changed date of hearing was not delivered to them. The statement made in paragraph (Z) of the counter affidavit filed by respondent No.1 substantially supports the appellants? assertion that they had not received intimation about preponement of the date of hearing. It also belies the assertion of respondent No.3 that notice was delivered to the appellants before the date of hearing, i.e., 21.5.2012. If the notice had been duly served upon the appellants, then respondent No.1 would have produced the receipt of delivery. His failure to do so leads to an irresistible inference that the appellants were not made aware of the fact that the date of hearing had been changed from 19.6.2012 to 21.5.2012. The documents produced by respondent No.3 do not help us in resolving the controversy regarding service of notice on the appellants. The contents of these documents only adds to the confusion. If the second letter dated 15.2.2013 sent by the Senior Superintendent of Post Office was delivered on 22.5.2012 then we have no option but to hold that the notice issued by the office of respondent No.1 was delivered to the addressee on 22.5.2012, i.e., one day after the date fixed for hearing. | 1 | 3,376 | 483 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
### Input:
the writ petition, the appellants filed an application for interim stay. The learned Single Judge took cognizance of the assertion made in the writ petition that notice of preponement of the date of hearing was not served upon them, but refused to grant stay on the ground that the writ petition was filed after four months of the order passed by respondent No.1 and during the intervening period conveyance deed had already been registered for a sum of Rs.95 lacs and the Society and respondent No.3 had entered into development agreements with builders.14. Shri Mukul Rohatgi, learned senior counsel for the appellants argued that the order passed by respondent No.1 is liable to be declared as nullity because he arbitrarily preponed the date of hearing and decided the application of respondent No.3 without bothering to find out whether the notice issued to the parties about the changed date had been delivered/served. Shri Rohatgi referred to the English translation of the order sheets recorded by respondent No.1, xerox copies of communications dated 15.2.2013 sent by Senior Superintendant of Post Offices, Mumbai City (North) to Ms. Pritha Dave, counsel for respondent No.3 and the counter filed on behalf of respondent No.1 before the High Court to show that the notice issued in terms of the direction given by respondent No.1 on 16.5.2012 was not served upon the appellants. Learned senior counsel then argued that due to non service of notice, the appellants could not appear on 21.5.2012 and on that account their cause has been seriously prejudiced. Shri Rohatgi then submitted that the absence of the counsel/representatives of all the parties except respondent No.3 on 21.5.2012 should have alerted respondent No.1 that there was something wrong with the service of notice and prompted him to make an inquiry to ascertain whether the notice had been served on all the parties, but the concerned officer deliberately did not take any action in this regard and proceeded to close the matter for orders. Shri Rohatgi argued that the explanation given by respondent No.1 for preponing the date of hearing, i.e., fixation of excess number of cases on the particular date, i.e., 19.6.2012 should not be accepted because even on 15.5.2012, the concerned officer must have been aware of the fact that he had already fixed large number of cases on 19.6.2012.15. Shri Shyam Divan, learned senior counsel for respondent No.3, supported the decision of respondent No.1 to prepone the date of hearing by pointing out that the officer concerned was compelled to do so because he was required to decide the application within six months of its institution. Shri Divan referred to letter dated 15/18.2.2013 sent by Senior Superintendent of Post Offices, Mumbai City (North 2) to Ms. Pritha Dave and argued that the intimation given to the appellants? counsel was sufficient to make them aware of the decision taken by respondent No.1 to prepone the date of hearing. Shri Divan submitted that the appellants cannot plead denial of hearing by respondent No.1 as the ground for quashing the order passed by him because their advocate had been duly intimated about the changed date of hearing. However, learned senior counsel could not offer any clarification about the delivery of notice to the sender on 22.5.2012. 16. We have considered the respective arguments and carefully scrutinized the record. 17. By producing xerox copies of the receipt of speed post and two communications dated 15.2.2013 sent by Senior Superintendent of Post Offices, Mumbai City (North) to Ms. Pritha Dave, respondent No.3 has made an attempt to show that the appellants had been informed about the changed date of hearing, but we have not felt convinced. In the first place, the justification offered for preponement of the date of hearing is too weak to be accepted. It is neither the pleaded case of respondent Nos. 1 and 3 nor it has been argued before us that the application filed by respondent No.3 was the only one dealt with by the officer concerned. Rather, the assertion contained in the counter filed by respondent No.1 before the High Court shows that large number of similar cases were handled by the officer. Therefore, it can be presumed that he was aware of the imperative to decide the application within six months. Notwithstanding this, respondent No.1 fixed large number of cases on 19.6.2012. Why he did so has not been explained. Why he singled out the application of respondent No.3 for preponing the date of hearing has also not been explained. Therefore, it is reasonable to infer that the action of respondent No.1 to prepone the date of hearing of the application was founded on extraneous reasons and was totally unwarranted and unjustified.18. Secondly, the documents produced before this Court unmistakably show that notice issued to the appellants to apprise them about the changed date of hearing was not delivered to them. The statement made in paragraph (Z) of the counter affidavit filed by respondent No.1 substantially supports the appellants? assertion that they had not received intimation about preponement of the date of hearing. It also belies the assertion of respondent No.3 that notice was delivered to the appellants before the date of hearing, i.e., 21.5.2012. If the notice had been duly served upon the appellants, then respondent No.1 would have produced the receipt of delivery. His failure to do so leads to an irresistible inference that the appellants were not made aware of the fact that the date of hearing had been changed from 19.6.2012 to 21.5.2012. The documents produced by respondent No.3 do not help us in resolving the controversy regarding service of notice on the appellants. The contents of these documents only adds to the confusion. If the second letter dated 15.2.2013 sent by the Senior Superintendent of Post Office was delivered on 22.5.2012 then we have no option but to hold that the notice issued by the office of respondent No.1 was delivered to the addressee on 22.5.2012, i.e., one day after the date fixed for hearing.
### Response:
1
### Explanation:
17. By producing xerox copies of the receipt of speed post and two communications dated 15.2.2013 sent by Senior Superintendent of Postth) to Ms. Pritha Dave, respondent No.3 has made an attempt to show that the appellants had been informed about the changed date of hearing, but we have not felt convinced. In the first place, the justification offered for preponement of the date of hearing is too weak to be accepted. It is neither the pleaded case of respondent Nos. 1 and 3 nor it has been argued before us that the application filed by respondent No.3 was the only one dealt with by the officer concerned. Rather, the assertion contained in the counter filed by respondent No.1 before the High Court shows that large number of similar cases were handled by the officer. Therefore, it can be presumed that he was aware of the imperative to decide the application within six months. Notwithstanding this, respondent No.1 fixed large number of cases on 19.6.2012. Why he did so has not been explained. Why he singled out the application of respondent No.3 for preponing the date of hearing has also not been explained. Therefore, it is reasonable to infer that the action of respondent No.1 to prepone the date of hearing of the application was founded on extraneous reasons and was totally unwarranted and unjustified.18. Secondly, the documents produced before this Court unmistakably show that notice issued to the appellants to apprise them about the changed date of hearing was not delivered to them. The statement made in paragraph (Z) of the counter affidavit filed by respondent No.1 substantially supports the appellants? assertion that they had not received intimation about preponement of the date of hearing. It also belies the assertion of respondent No.3 that notice was delivered to the appellants before the date of hearing, i.e., 21.5.2012. If the notice had been duly served upon the appellants, then respondent No.1 would have produced the receipt of delivery. His failure to do so leads to an irresistible inference that the appellants were not made aware of the fact that the date of hearing had been changed from 19.6.2012 to 21.5.2012. The documents produced by respondent No.3 do not help us in resolving the controversy regarding service of notice on the appellants. The contents of these documents only adds to the confusion. If the second letter dated 15.2.2013 sent by the Senior Superintendent of Post Office was delivered on 22.5.2012 then we have no option but to hold that the notice issued by the office of respondent No.1 was delivered to the addressee on 22.5.2012, i.e., one day after the date fixed for hearing.
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M/s. Gajendra Transport Private Limited Vs. Anamallias Bus Transport Private Limited & Another | after having done so consider the application or the representations in connection therewith in accordance with the procedure laid down in Section 57 of the Act:" Again in the case of R. Obliswami Naidu (1969) 1 SCR 730 this Court considered the submission in that case as whether the Regional Transport Authority could decide the number of permits while considering applications for permits. This Court did not accept the submission because such a view would allow an operator who happened to apply first to be in a commanding position with the result that the Regional Transport Authority would have no opportunity to choose between competing operators and public interest might suffer In the same case it is again said that the determination of the number of stage carriages for which stage carriage permits may be granted for the route is to be done first and there after applications for permits are to be entertained."3. The learned Judge then proceeded to add that the earlier decisions of the Court established two propositions, namely:"First, that the Regional Transport Authority should fix the limit of number of stage carriage permits under Section 47(3) of the Act and after having done so the Regional Transport Authority will consider the application for grant and representations in connection therewith in accordance with the procedure laid down in Section 57 of the Act. Secondly, when a new route is opened for the first time and an advertisement is issued calling for applications for such a new route specifying the number of vacancies for it, it would be reasonable to hold that the number of vehicles if specified as the limit decided upon by the Regional Transport Authority mand towards the end, the learned Judge pointed out that where the Regional Transport Authority issues a notification under Section 57(2) inviting applications for a permit on a new route or a permit for an additional bus on an existing route, it can reasonably be hold that the Regional Transport Authority has arrived at a decision as to the limit of the number of permits as required under Section 47(3), because it is not the form but the substance of the order that has to be considered. It is in the light of this statement of the law that we must consider whether the Regional Transport Authority acted without jurisdiction in granting stage carriage permit to the appellants as found by the Tribunal and affirmed by the Division Bench of the Madras High Court."4. I appears from the order of the Tribunal that according to it the Regional Transport Authority did not fix or revise the number of stage carriages for which permits might be granted on the route before taking up the applications for consideration and it was only at the heating of (he applications that he decided the need for an additional bus on the route and that was in breach of the requirement of law. The Division Bench of the Madras High Court also took the view that "there was no order under Section 47(3) relevant to the route." But this finding that there was no order fixing the limit of the number of stage carriages for which permits might be granted on the route, is clearly erroneous Paragraph 4 of the order of the Tribunal is very illuminating in this connection. It says :"the facts are that as can be seen at page I of the Regional Transport Authoritys file a traffic survey had been conducted during the period from 1-6-1966 to 15-7-1966 on various bus routes in Coimbatore District, and the load factor on the route in question was found to be high and therefore it was proposed to introduce one more bus on this route. Application were accordingly invited by means of the notification under Section 57(2) of the Motor Vehicles Act for the grant of a permit for one bus...".5. This statement in the order of the Tribunal clearly shows that before the notification under Section 57(2) was issued inviting applications for grant of a stage carriage permit for plying one additional bus on the route, a decision had already been taken by the Regional Transport Authority on the basis of the traffic survey conducted during the period from Is June, 1966 to 15th July, 1966 that one additional bus should be introduced on the route. It is true that a formal order was not passed by the Regional Transport Authority revising the limit of the number of stage carriage by the addition of one more bus on the route, but, as pointed out by this Court in Mohd. Ibrahim v. State Transport Appellate Tribunal Madras [1971]1SCR474:"an order under Section 47 3, of Act is not a matter of mere form but of substance The decision of the Regional Transport Authority to introduce one more bus on the route must be regarded as an order under Section 47(3). It would also be reasonable to hold on the strength of the decision in Mohd Ibrahim v. State Transport Appellate Tribunal, Madras, [1971]1SCR474 that since the notification under Section 47 (2) was issued by the Regional Transport Authority inviting applications for grant of stage carriage permit for an additional bus on the route, it represented a determination of the Regional Transport Authority as to the limit of number of stage carriages on the route under Section 47(3). There was, thus, clearly a valid order under Section 47(3) fixing the limit of the number of stage carriages for which permits might be granted on the route, before the applications were taken up for consideration and the order was made granting stage carriage, permit to the appellant. The Tribunal was, there fore, not right in setting aside the order of the Regional Transport Authority on the ground that there was no valid order under Section 47(3) and the Single Judge as well as the Division Bench of the Madras High Court were also in error in confirming the order made by the Tribunal." 6. We, these fore | 1[ds]rs from the order of the Tribunal that according to it the Regional Transport Authority did not fix or revise the number of stage carriages for which permits might be granted on the route before taking up the applications for consideration and it was only at theof the applicationsthat he decided the need for an additional bus on the route and that was in breach of the requirement of law. The Division Bench of the Madras High Court also took the view that "there was no orderunder Section 47(3) relevant to theBut this finding that there was no order fixing the limit of the number of stage carriages for which permits might be granted on theParagraph 4 of the order of the Tribunal is very illuminating in this connection. Ite facts are that as can be seen at pageof the Regional Transport Authoritys file a traffic survey had been conducted during the period from66 on various bus routes in Coimbatore District, and the load factor on thein question was found to be high and therefore it was proposed to introduce one more bus on this route.were accordingly invited by means of the notification under Section 57(2) of the Motor Vehicles Act for the grant of a permit for one busstatement in the order of the Tribunal clearly shows that before the notification under Section 57(2) was issued inviting applications for grant of a stage carriage permit for plying one additional bus on the route, a decision had already been taken by the Regional Transport Authority on the basis of the traffic survey conducted duringperiod from 1st June, 1966 to 15th July, 1966that one additional bus shouldintroduced on the route. It is true that a formal order was not passed by the Regional Transport Authority revising the limit of the number of stageby the addition of one more bus on the route, but, as pointed out by this Court in Mohd. Ibrahim v. State Transport Appellate1 SCR 474 an orderunder Section 47(3) of the Actis not a matter of mere form but ofThe decision of the Regional Transport Authority to introduce one more bus on the route must be regarded aser Section 47(3). It would also be reasonable to hold on the strength of the decision in1 SCR 474 that since the notificationunder Section 57(2) was issued by the Regional Transport Authority inviting applications for grant of stage carriage permit for an additional bus on the route, it represented a determination of the Regional Transport Authority as to the limit ofof stage carriages on the route3). There was, thus, clearly a valid order(3) fixing the limit of the number of stage carriages for which permits might be granted on the routebefore the applications were taken up for consideration and the order was made granting stage carriagepermit to the, not right in setting aside the order of the Regional Transport Authority on the ground that there was no valid order(3) and the Single Judge as well as the Division Bench of the Madras High Court were also in error in confirming the order made by the Tribunal. | 1 | 2,222 | 562 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
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after having done so consider the application or the representations in connection therewith in accordance with the procedure laid down in Section 57 of the Act:" Again in the case of R. Obliswami Naidu (1969) 1 SCR 730 this Court considered the submission in that case as whether the Regional Transport Authority could decide the number of permits while considering applications for permits. This Court did not accept the submission because such a view would allow an operator who happened to apply first to be in a commanding position with the result that the Regional Transport Authority would have no opportunity to choose between competing operators and public interest might suffer In the same case it is again said that the determination of the number of stage carriages for which stage carriage permits may be granted for the route is to be done first and there after applications for permits are to be entertained."3. The learned Judge then proceeded to add that the earlier decisions of the Court established two propositions, namely:"First, that the Regional Transport Authority should fix the limit of number of stage carriage permits under Section 47(3) of the Act and after having done so the Regional Transport Authority will consider the application for grant and representations in connection therewith in accordance with the procedure laid down in Section 57 of the Act. Secondly, when a new route is opened for the first time and an advertisement is issued calling for applications for such a new route specifying the number of vacancies for it, it would be reasonable to hold that the number of vehicles if specified as the limit decided upon by the Regional Transport Authority mand towards the end, the learned Judge pointed out that where the Regional Transport Authority issues a notification under Section 57(2) inviting applications for a permit on a new route or a permit for an additional bus on an existing route, it can reasonably be hold that the Regional Transport Authority has arrived at a decision as to the limit of the number of permits as required under Section 47(3), because it is not the form but the substance of the order that has to be considered. It is in the light of this statement of the law that we must consider whether the Regional Transport Authority acted without jurisdiction in granting stage carriage permit to the appellants as found by the Tribunal and affirmed by the Division Bench of the Madras High Court."4. I appears from the order of the Tribunal that according to it the Regional Transport Authority did not fix or revise the number of stage carriages for which permits might be granted on the route before taking up the applications for consideration and it was only at the heating of (he applications that he decided the need for an additional bus on the route and that was in breach of the requirement of law. The Division Bench of the Madras High Court also took the view that "there was no order under Section 47(3) relevant to the route." But this finding that there was no order fixing the limit of the number of stage carriages for which permits might be granted on the route, is clearly erroneous Paragraph 4 of the order of the Tribunal is very illuminating in this connection. It says :"the facts are that as can be seen at page I of the Regional Transport Authoritys file a traffic survey had been conducted during the period from 1-6-1966 to 15-7-1966 on various bus routes in Coimbatore District, and the load factor on the route in question was found to be high and therefore it was proposed to introduce one more bus on this route. Application were accordingly invited by means of the notification under Section 57(2) of the Motor Vehicles Act for the grant of a permit for one bus...".5. This statement in the order of the Tribunal clearly shows that before the notification under Section 57(2) was issued inviting applications for grant of a stage carriage permit for plying one additional bus on the route, a decision had already been taken by the Regional Transport Authority on the basis of the traffic survey conducted during the period from Is June, 1966 to 15th July, 1966 that one additional bus should be introduced on the route. It is true that a formal order was not passed by the Regional Transport Authority revising the limit of the number of stage carriage by the addition of one more bus on the route, but, as pointed out by this Court in Mohd. Ibrahim v. State Transport Appellate Tribunal Madras [1971]1SCR474:"an order under Section 47 3, of Act is not a matter of mere form but of substance The decision of the Regional Transport Authority to introduce one more bus on the route must be regarded as an order under Section 47(3). It would also be reasonable to hold on the strength of the decision in Mohd Ibrahim v. State Transport Appellate Tribunal, Madras, [1971]1SCR474 that since the notification under Section 47 (2) was issued by the Regional Transport Authority inviting applications for grant of stage carriage permit for an additional bus on the route, it represented a determination of the Regional Transport Authority as to the limit of number of stage carriages on the route under Section 47(3). There was, thus, clearly a valid order under Section 47(3) fixing the limit of the number of stage carriages for which permits might be granted on the route, before the applications were taken up for consideration and the order was made granting stage carriage, permit to the appellant. The Tribunal was, there fore, not right in setting aside the order of the Regional Transport Authority on the ground that there was no valid order under Section 47(3) and the Single Judge as well as the Division Bench of the Madras High Court were also in error in confirming the order made by the Tribunal." 6. We, these fore
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rs from the order of the Tribunal that according to it the Regional Transport Authority did not fix or revise the number of stage carriages for which permits might be granted on the route before taking up the applications for consideration and it was only at theof the applicationsthat he decided the need for an additional bus on the route and that was in breach of the requirement of law. The Division Bench of the Madras High Court also took the view that "there was no orderunder Section 47(3) relevant to theBut this finding that there was no order fixing the limit of the number of stage carriages for which permits might be granted on theParagraph 4 of the order of the Tribunal is very illuminating in this connection. Ite facts are that as can be seen at pageof the Regional Transport Authoritys file a traffic survey had been conducted during the period from66 on various bus routes in Coimbatore District, and the load factor on thein question was found to be high and therefore it was proposed to introduce one more bus on this route.were accordingly invited by means of the notification under Section 57(2) of the Motor Vehicles Act for the grant of a permit for one busstatement in the order of the Tribunal clearly shows that before the notification under Section 57(2) was issued inviting applications for grant of a stage carriage permit for plying one additional bus on the route, a decision had already been taken by the Regional Transport Authority on the basis of the traffic survey conducted duringperiod from 1st June, 1966 to 15th July, 1966that one additional bus shouldintroduced on the route. It is true that a formal order was not passed by the Regional Transport Authority revising the limit of the number of stageby the addition of one more bus on the route, but, as pointed out by this Court in Mohd. Ibrahim v. State Transport Appellate1 SCR 474 an orderunder Section 47(3) of the Actis not a matter of mere form but ofThe decision of the Regional Transport Authority to introduce one more bus on the route must be regarded aser Section 47(3). It would also be reasonable to hold on the strength of the decision in1 SCR 474 that since the notificationunder Section 57(2) was issued by the Regional Transport Authority inviting applications for grant of stage carriage permit for an additional bus on the route, it represented a determination of the Regional Transport Authority as to the limit ofof stage carriages on the route3). There was, thus, clearly a valid order(3) fixing the limit of the number of stage carriages for which permits might be granted on the routebefore the applications were taken up for consideration and the order was made granting stage carriagepermit to the, not right in setting aside the order of the Regional Transport Authority on the ground that there was no valid order(3) and the Single Judge as well as the Division Bench of the Madras High Court were also in error in confirming the order made by the Tribunal.
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Union of India Vs. M/s. Pradeep Vinod Construction Co | take the view that the grant of pendente lite interest on the claim of Rs. 10,17,461/- is not justified. The award as well as the orders of the courts below are accordingly modified to the aforesaid extent."(emphasis is ours)Having examined various contractual clauses, as also, the contractual clause in the Tehri Hydro Development Corpn.Ltd. case (supra), the three-Judge Bench concluded as under:"32. In para 4 in Engineers-De-Space-Age (supra) this Court has observed that bar under the contract will not be applicable to the arbitrator cannot be said to be observation of general application. In our opinion, it would depend upon the stipulation in the contract in each case whether the power of Arbitrator to grant pendente lite interest is expressly taken away. If answer is "yes" then the arbitrator would have no power to award pendente lite interest.33. The decision in Madnani Construction Corporation (supra) has followed the decision in Engineers-De-Space-Age (supra). The same is also required to be diluted to the extent that express stipulation under contract may debar the arbitrator from awarding interest pendente lite. Grant of pendente lite interest may depend upon several factors such as phraseology used in the agreement, clauses conferring power relating to arbitration, nature of claim and dispute referred to Arbitrator and on what items power to award interest has been taken away and for which period.34. Thus, our answer to the reference is that if the contract expressly bars the award of interest pendente lite, the same cannot be awarded by the arbitrator. We also make it clear that the bar to award interest on delayed payment by itself will not be readily inferred as express bar to award interest pendente lite by the Arbitral Tribunal, as ouster of power of the arbitrator has to be considered on various relevant aspects referred to in the decisions of this Court, it would be for the Division Bench to consider the case on merits."(emphasis is ours)5. The submission advanced at the hands of the learned counsel for the appellant was simple. It was contended, that the clause in the present case is in pari materia, with the clause examined by this Court in Tehri Hydro Development Corpn.Ltd. case (supra), and as such, the conclusions recorded therein should be adopted in disposing of the instant matter as well.6. Having given our thoughtful consideration to the submissions advanced at the hands of the learned counsel for the appellant, we are of the view, that the two judgments, relied upon by the learned counsel for the appellant, would lead to one simple inference namely, that the capacity of the arbitrator to award interest, would depend on the contractual agreement. It is therefore necessary and imperative for us to determine the contractual implications of the relevant clause for arriving at the conclusion, whether interest was payable at the behest of the appellant with reference to contractual obligations in respect of matters other than earnest money and security deposit. It is not a matter of dispute, that the relevant clause under which the High Court has awarded interest, and the one under which the appellant desires an adjudication at our hands, that interest should not have been awarded, is clause 16 of the contract, which is reproduced below:"16. Earnest-money and security deposit - (1) The earnest-money deposited by the Contractor with his tender will be retained by the Railway as part of security for the due and faithful fulfillment of the contract by the Contractor. The balance to make up this security deposit which will be 10 per cent of the total value of the contract, unless otherwise specified in the special conditions, if any, may be deposited by the contractor in cash or in the form of Government Securities or may be recovered by percentage deduction from the Contractors "on account" bills, provided also that in case of a defaulting contractor the Railway may retain any amount due for payment to the contractor on the spending `on account bills so that the amount or amounts so retained may not exceed 10% of the total value of the contract.(2) Interest on amounts - No interest will be payable upon the earnest money or the security deposit or amounts payable to the Contractor under the contract but Government Securities deposited in terms of sub-clause (1) of this clause will be repayable with interest accrued thereon."7. Having given our thoughtful consideration to the contractual obligations entered into by the parties through clause 16, we have no reason to doubt, firstly, that the clause related exclusively to earnest money and security deposit. The above Clause did not relate to the other contractual obligations between the parties. A perusal of clause 16 (1) further clarifies the position, inasmuch as, even if some payment under the contractual obligation was diverted to make good the security deposit payable, no interest would be payable thereon as well. Therefore, there can be no doubt, that non-payment of interest, contemplated between the parties under clause 16, was exclusively limited to the component of earnest money and the security deposit, which was held by the appellant and nothing else. Even though, there can be no dispute whatsoever, that Clause 16(2) is in pari materia with the clause taken into consideration in Tehri Hydro Development Corpn.Ltd. case (supra), yet in the case before us, having read the clause in its entirety, we are satisfied, that the parties had agreed, that payment of interest would not be due, only with reference to earnest money and security deposit. Thus viewed, we have no hesitation in concluding, that the determination in the arbitral award, of component of interest, payable by the appellant to the respondent, was in terms of the contractual obligation. Nothing in the contract provided for non-payment of interest on the contractual obligations.8. In recording our finding, we have merely given effect to the judgments relied upon by the learned counsel for the appellant. We have interpreted the contractual clause pertaining to the obligation of interest, and rendered our determination thereon. | 0[ds]Having given our thoughtful consideration to the contractual obligations entered into by the parties through clause 16, we have no reason to doubt, firstly, that the clause related exclusively to earnest money and security deposit. The above Clause did not relate to the other contractual obligations between the parties. A perusal of clause 16 (1) further clarifies the position, inasmuch as, even if some payment under the contractual obligation was diverted to make good the security deposit payable, no interest would be payable thereon as well. Therefore, there can be no doubt, thatof interest, contemplated between the parties under clause 16, was exclusively limited to the component of earnest money and the security deposit, which was held by the appellant and nothing else. Even though, there can be no dispute whatsoever, that Clause 16(2) is in pari materia with the clause taken into consideration in Tehri Hydro Development Corpn.Ltd. case (supra), yet in the case before us, having read the clause in its entirety, we are satisfied, that the parties had agreed, that payment of interest would not be due, only with reference to earnest money and security deposit. Thus viewed, we have no hesitation in concluding, that the determination in the arbitral award, of component of interest, payable by the appellant to the respondent, was in terms of the contractual obligation. Nothing in the contract provided forof interest on the contractual obligations.8. In recording our finding, we have merely given effect to the judgments relied upon by the learned counsel for the appellant. We have interpreted the contractual clause pertaining to the obligation of interest, and rendered our determination thereon. | 0 | 2,312 | 318 | ### 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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take the view that the grant of pendente lite interest on the claim of Rs. 10,17,461/- is not justified. The award as well as the orders of the courts below are accordingly modified to the aforesaid extent."(emphasis is ours)Having examined various contractual clauses, as also, the contractual clause in the Tehri Hydro Development Corpn.Ltd. case (supra), the three-Judge Bench concluded as under:"32. In para 4 in Engineers-De-Space-Age (supra) this Court has observed that bar under the contract will not be applicable to the arbitrator cannot be said to be observation of general application. In our opinion, it would depend upon the stipulation in the contract in each case whether the power of Arbitrator to grant pendente lite interest is expressly taken away. If answer is "yes" then the arbitrator would have no power to award pendente lite interest.33. The decision in Madnani Construction Corporation (supra) has followed the decision in Engineers-De-Space-Age (supra). The same is also required to be diluted to the extent that express stipulation under contract may debar the arbitrator from awarding interest pendente lite. Grant of pendente lite interest may depend upon several factors such as phraseology used in the agreement, clauses conferring power relating to arbitration, nature of claim and dispute referred to Arbitrator and on what items power to award interest has been taken away and for which period.34. Thus, our answer to the reference is that if the contract expressly bars the award of interest pendente lite, the same cannot be awarded by the arbitrator. We also make it clear that the bar to award interest on delayed payment by itself will not be readily inferred as express bar to award interest pendente lite by the Arbitral Tribunal, as ouster of power of the arbitrator has to be considered on various relevant aspects referred to in the decisions of this Court, it would be for the Division Bench to consider the case on merits."(emphasis is ours)5. The submission advanced at the hands of the learned counsel for the appellant was simple. It was contended, that the clause in the present case is in pari materia, with the clause examined by this Court in Tehri Hydro Development Corpn.Ltd. case (supra), and as such, the conclusions recorded therein should be adopted in disposing of the instant matter as well.6. Having given our thoughtful consideration to the submissions advanced at the hands of the learned counsel for the appellant, we are of the view, that the two judgments, relied upon by the learned counsel for the appellant, would lead to one simple inference namely, that the capacity of the arbitrator to award interest, would depend on the contractual agreement. It is therefore necessary and imperative for us to determine the contractual implications of the relevant clause for arriving at the conclusion, whether interest was payable at the behest of the appellant with reference to contractual obligations in respect of matters other than earnest money and security deposit. It is not a matter of dispute, that the relevant clause under which the High Court has awarded interest, and the one under which the appellant desires an adjudication at our hands, that interest should not have been awarded, is clause 16 of the contract, which is reproduced below:"16. Earnest-money and security deposit - (1) The earnest-money deposited by the Contractor with his tender will be retained by the Railway as part of security for the due and faithful fulfillment of the contract by the Contractor. The balance to make up this security deposit which will be 10 per cent of the total value of the contract, unless otherwise specified in the special conditions, if any, may be deposited by the contractor in cash or in the form of Government Securities or may be recovered by percentage deduction from the Contractors "on account" bills, provided also that in case of a defaulting contractor the Railway may retain any amount due for payment to the contractor on the spending `on account bills so that the amount or amounts so retained may not exceed 10% of the total value of the contract.(2) Interest on amounts - No interest will be payable upon the earnest money or the security deposit or amounts payable to the Contractor under the contract but Government Securities deposited in terms of sub-clause (1) of this clause will be repayable with interest accrued thereon."7. Having given our thoughtful consideration to the contractual obligations entered into by the parties through clause 16, we have no reason to doubt, firstly, that the clause related exclusively to earnest money and security deposit. The above Clause did not relate to the other contractual obligations between the parties. A perusal of clause 16 (1) further clarifies the position, inasmuch as, even if some payment under the contractual obligation was diverted to make good the security deposit payable, no interest would be payable thereon as well. Therefore, there can be no doubt, that non-payment of interest, contemplated between the parties under clause 16, was exclusively limited to the component of earnest money and the security deposit, which was held by the appellant and nothing else. Even though, there can be no dispute whatsoever, that Clause 16(2) is in pari materia with the clause taken into consideration in Tehri Hydro Development Corpn.Ltd. case (supra), yet in the case before us, having read the clause in its entirety, we are satisfied, that the parties had agreed, that payment of interest would not be due, only with reference to earnest money and security deposit. Thus viewed, we have no hesitation in concluding, that the determination in the arbitral award, of component of interest, payable by the appellant to the respondent, was in terms of the contractual obligation. Nothing in the contract provided for non-payment of interest on the contractual obligations.8. In recording our finding, we have merely given effect to the judgments relied upon by the learned counsel for the appellant. We have interpreted the contractual clause pertaining to the obligation of interest, and rendered our determination thereon.
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Having given our thoughtful consideration to the contractual obligations entered into by the parties through clause 16, we have no reason to doubt, firstly, that the clause related exclusively to earnest money and security deposit. The above Clause did not relate to the other contractual obligations between the parties. A perusal of clause 16 (1) further clarifies the position, inasmuch as, even if some payment under the contractual obligation was diverted to make good the security deposit payable, no interest would be payable thereon as well. Therefore, there can be no doubt, thatof interest, contemplated between the parties under clause 16, was exclusively limited to the component of earnest money and the security deposit, which was held by the appellant and nothing else. Even though, there can be no dispute whatsoever, that Clause 16(2) is in pari materia with the clause taken into consideration in Tehri Hydro Development Corpn.Ltd. case (supra), yet in the case before us, having read the clause in its entirety, we are satisfied, that the parties had agreed, that payment of interest would not be due, only with reference to earnest money and security deposit. Thus viewed, we have no hesitation in concluding, that the determination in the arbitral award, of component of interest, payable by the appellant to the respondent, was in terms of the contractual obligation. Nothing in the contract provided forof interest on the contractual obligations.8. In recording our finding, we have merely given effect to the judgments relied upon by the learned counsel for the appellant. We have interpreted the contractual clause pertaining to the obligation of interest, and rendered our determination thereon.
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M/S. Skb Dry Fruits Mkt. Co. Pvt. Ltd Vs. Commnr. Of Central Excise, New Delhi | The appellant carries out the activities of processing dry fruits, peanut and are also carrying out activities of clearance of wheat dalia, rice flips, roasted and spiced channa and channa dal which are being cleared in different pouches bearing brand name YumYum and SKB which are packed cartons. 2. Since the appellant had not disclosed the material facts of the manufacture of excisable goods in any manner to the Department with an intent to evade central excise duty, a show cause notice dated 24.4.1998 was issued to the appellant. After the reply having been filed by the appellant, the Additional Commissioner vide Order in Original No.81/98 dated 24th December 1998 confirmed the demand of central excise duty; imposed penalty besides confiscating the seized goods and ordered redemption of goods on payment of redemption fine of Rs.35,000/- in lieu of confiscation. The Addl. Commissioner also imposed a penalty of Rs.15,000/- on Sh. Sudhir Kumar, Director of the appellant-company. The appellant, being aggrieved, filed an appeal before the Commissioner (Appeals) which was rejected vide order dated 12th February 2001. 3. The appellant thereafter filed an appeal before the Tribunal on the grounds, inter alia, that the activities carried on by the appellant did not amount to manufacture; that the products remained nuts and are not known by any other name in the trade parlance and, therefore, it cannot be held that they were subjected to any preparation which may bring them into the mischief of duty of excise. The Tribunal negatived the plea raised by the appellant and confirmed the order in original but reduced the amount of penalty. 4. Being dissatisfied by the order of the Tribunal, the appellant has filed the present appeal. This Court entertained the appeal and issued notice only insofar as peanuts, pista, cashewnuts and almonds are concerned. The appeal was not entertained as regards other items. This appeal was ordered to be tagged with other connected appeals. Thus, the appeal was listed along with C.A.No.2215 of 2002 and other appeals involving similar question. However, since the counsel for the appellant was not present on the date of hearing, the present appeal was de-linked and the connected appeals were disposed of by a judgment dated 07th February 2008 in the case of Commissioner of Customs & Central Excise, Goa v. Phil Corporation Ltd. reported in 2008(2) SCALE 260 = JT 2008(2) SC 239 . By the said judgment, C.A.No.2215 of 2002 filed by the Revenue was allowed and the appeals filed by the assessees were dismissed. In C.A.No.2215 of 2002, the Tribunal had taken a contrary view than the one taken by the Tribunal in the present case. In that case it was held by the Tribunal that the similar activities carried on by the assessee did not amount to manufacture. Hence, the products in question were not chargeable to duty. This Court, by the aforementioned judgment, has reversed the order of the Tribunal and has held that the activities carried on by the assessee amounted to manufacture and that the products in question were classifiable under Chapter 20 of the Central Excise Tariff Act and accordingly set aside the order passed by the Tribunal and allowed the appeal filed by the Revenue. 5. Since the products involved in the present case are similar to those in the case of Phil Corporation Ltd. (supra), following the said decision, | 0[ds]This Court entertained the appeal and issued notice only insofar as peanuts, pista, cashewnuts and almonds are concerned. The appeal was not entertained as regards other items. This appeal was ordered to be tagged with other connected appeals. Thus, the appeal was listed along with C.A.No.2215 of 2002 and other appeals involving similar question. However, since the counsel for the appellant was not present on the date of hearing, the present appeal was de-linked and the connected appeals were disposed of by a judgment dated 07th February 2008 in the case of Commissioner of Customs & Central Excise, Goa v. Phil Corporation Ltd. reported in 2008(2) SCALE 260 = JT 2008(2) SC 239 . By the said judgment, C.A.No.2215 of 2002 filed by the Revenue was allowed and the appeals filed by the assessees were dismissed. In C.A.No.2215 of 2002, the Tribunal had taken a contrary view than the one taken by the Tribunal in the present case. In that case it was held by the Tribunal that the similar activities carried on by the assessee did not amount to manufacture. Hence, the products in question were not chargeable to duty. This Court, by the aforementioned judgment, has reversed the order of the Tribunal and has held that the activities carried on by the assessee amounted to manufacture and that the products in question were classifiable under Chapter 20 of the Central Excise Tariff Act and accordingly set aside the order passed by the Tribunal and allowed the appeal filed by thethe products involved in the present case are similar to those in the case of Phil Corporation Ltd. (supra), following the said decision | 0 | 623 | 306 | ### 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 appellant carries out the activities of processing dry fruits, peanut and are also carrying out activities of clearance of wheat dalia, rice flips, roasted and spiced channa and channa dal which are being cleared in different pouches bearing brand name YumYum and SKB which are packed cartons. 2. Since the appellant had not disclosed the material facts of the manufacture of excisable goods in any manner to the Department with an intent to evade central excise duty, a show cause notice dated 24.4.1998 was issued to the appellant. After the reply having been filed by the appellant, the Additional Commissioner vide Order in Original No.81/98 dated 24th December 1998 confirmed the demand of central excise duty; imposed penalty besides confiscating the seized goods and ordered redemption of goods on payment of redemption fine of Rs.35,000/- in lieu of confiscation. The Addl. Commissioner also imposed a penalty of Rs.15,000/- on Sh. Sudhir Kumar, Director of the appellant-company. The appellant, being aggrieved, filed an appeal before the Commissioner (Appeals) which was rejected vide order dated 12th February 2001. 3. The appellant thereafter filed an appeal before the Tribunal on the grounds, inter alia, that the activities carried on by the appellant did not amount to manufacture; that the products remained nuts and are not known by any other name in the trade parlance and, therefore, it cannot be held that they were subjected to any preparation which may bring them into the mischief of duty of excise. The Tribunal negatived the plea raised by the appellant and confirmed the order in original but reduced the amount of penalty. 4. Being dissatisfied by the order of the Tribunal, the appellant has filed the present appeal. This Court entertained the appeal and issued notice only insofar as peanuts, pista, cashewnuts and almonds are concerned. The appeal was not entertained as regards other items. This appeal was ordered to be tagged with other connected appeals. Thus, the appeal was listed along with C.A.No.2215 of 2002 and other appeals involving similar question. However, since the counsel for the appellant was not present on the date of hearing, the present appeal was de-linked and the connected appeals were disposed of by a judgment dated 07th February 2008 in the case of Commissioner of Customs & Central Excise, Goa v. Phil Corporation Ltd. reported in 2008(2) SCALE 260 = JT 2008(2) SC 239 . By the said judgment, C.A.No.2215 of 2002 filed by the Revenue was allowed and the appeals filed by the assessees were dismissed. In C.A.No.2215 of 2002, the Tribunal had taken a contrary view than the one taken by the Tribunal in the present case. In that case it was held by the Tribunal that the similar activities carried on by the assessee did not amount to manufacture. Hence, the products in question were not chargeable to duty. This Court, by the aforementioned judgment, has reversed the order of the Tribunal and has held that the activities carried on by the assessee amounted to manufacture and that the products in question were classifiable under Chapter 20 of the Central Excise Tariff Act and accordingly set aside the order passed by the Tribunal and allowed the appeal filed by the Revenue. 5. Since the products involved in the present case are similar to those in the case of Phil Corporation Ltd. (supra), following the said decision,
### Response:
0
### Explanation:
This Court entertained the appeal and issued notice only insofar as peanuts, pista, cashewnuts and almonds are concerned. The appeal was not entertained as regards other items. This appeal was ordered to be tagged with other connected appeals. Thus, the appeal was listed along with C.A.No.2215 of 2002 and other appeals involving similar question. However, since the counsel for the appellant was not present on the date of hearing, the present appeal was de-linked and the connected appeals were disposed of by a judgment dated 07th February 2008 in the case of Commissioner of Customs & Central Excise, Goa v. Phil Corporation Ltd. reported in 2008(2) SCALE 260 = JT 2008(2) SC 239 . By the said judgment, C.A.No.2215 of 2002 filed by the Revenue was allowed and the appeals filed by the assessees were dismissed. In C.A.No.2215 of 2002, the Tribunal had taken a contrary view than the one taken by the Tribunal in the present case. In that case it was held by the Tribunal that the similar activities carried on by the assessee did not amount to manufacture. Hence, the products in question were not chargeable to duty. This Court, by the aforementioned judgment, has reversed the order of the Tribunal and has held that the activities carried on by the assessee amounted to manufacture and that the products in question were classifiable under Chapter 20 of the Central Excise Tariff Act and accordingly set aside the order passed by the Tribunal and allowed the appeal filed by thethe products involved in the present case are similar to those in the case of Phil Corporation Ltd. (supra), following the said decision
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Deokinandan Prasad Vs. State Of Bihar & Ors | Punj 1 approved the decision of the learned Judge. The Letters Pateat Bench held that the pension granted to a public servant on his retirement is "property within the meaning of Article 31 (1) of the Constitution and he could be deprived of the same only by an authority of law and that pension does not cease to be property on the mere denial or cancellation of it. It was further held that the character of pension as "property" cannot possibly undergo such mutation at the whim of a particular person or authority. 32. The matter again came up before a Full Bench of the Punjab and Haryana High Court in K.R. Erry v. The State of Punjab, ILR (1967) 1 Punj and Har 278 (FB). The High Court had to consider the nature of the right of an officer to get pension. The majority quoted with approval the principles laid down in the two earlier decisions of the same High Court, referred to above, and held that the pension is not to be treated as a bounty payable on the sweet-will and pleasure of the Government and the right to superannuation pension including its amount is a valuable right vesting in a Government servant. It was further held by the majority that even though an opportunity had already been afforded to the officer on an earlier occasion for showing cause against the imposition of penalty for lapse or misconduct on his part and he has been found guilty, nevertheless, when a cut is sought to be imposed in the quantum of pension payable to an officer on the basis of misconduct already proved against him, a further opportunity to show cause in that regard must be given to the officer. This view regarding the giving of further opportunity was expressed by the learned Judges on the basis of the relevant Punjab Civil Service Rules. But the learned Chief Justice in his dissenting judgment was not prepared to agree with the majority that under such circumstances a further opportunity should be given to an officer when a reduction in the amount of pension payable is made by the State. It is not necessary for us in the case on hand to consider the question whether before taking action by way of reducing or denying the pension on the basis of disciplinary action already taken, a further notice to show cause should be given to an officer. That question does not arise for consideration before us. Nor are we concerned with the further question regarding the procedure, if any, to be adopted by the authorities before reducing or withholding the pension for the first time after the retirement of an officer. Hence we express no opinion regarding the views expressed by the majority and the minority Judges in the above Punjab High Court decision on this aspect. But we agree with the view of the majority when it has approved its earlier decision that pension is not a bounty payable on the sweet-will and pleasure of the Government and that, on the other hand, the right to pension is a valuable right vesting in a Government servant. 33. This Court in State of Madhya Pradesh v. Ranojirao Shinde, 1968-3 SCR 489 = (AIR 1968 SC 1053 ) had to consider the question whether a "cash grant" is "property" within the meaning of the expression in Articles 19 (1) (f) and 31 (1) of the Constitution. This Court held that it was property, observing "it is obvious that a right to sum of money is property." 34. Having due regard to the above decisions, we are of the opinion that the right of the petitioner to receive pension is property under Article 31 (1) and by a mere executive order the State had no power to withhold the same. Similarly, the said claim is also property under Article 19 (1) (f) and it is not saved by sub - article (5) of Article 19. Therefore, it follows that the order dated June 12, 1968 denying the petitioner right to receive pension affects the fundamental right of the petitioner under Articles 19 (1) (f) and 31 (1) of the Constitution, and as such the writ petition under Article 32 is maintainable. It may be that under the Pensions Act (Act 23 of 1871) there is a bar against a civil Court entertaining any suit relating to the matters mentioned therein. That does not stand in the way of a Writ of Mandamus being issued to the State to properly consider the claim of the petitioner for payment of pension according to law. 35. To conclude: No relief can be granted in respect of the orders dated September 2, 1953 and March 5, 1960 as they are already covered by the decision of the Patna High Court dated May 4, 1967 in Second Appeal No. 640 of 1967. Even assuming that the contention of the petitioner that the order dated September 2, 1953 was not the subject of adjudication in the litigation leading up to the decision of the High Court, in the second appeal, is correct, nevertheless, no relief can be granted as the order has been passed as early as 1953. Further, the representations made by him for cancellation of the said order have been rejected long ago. Further, there is no infringement of any fundamental right of the petitioner by that order. The order dated August 5, 1966 declaring under Rule 76 of the Service Code that the petitioner has ceased to be in Government employ is set aside and quashed. The order dated June 12, 1968 stating that under Rule 46 of the Pension Rules, the Department is unable to grant the petitioner pension is also set aside and quashed. As the petitioner himself claims that he has been retired from service on superannuation, a Writ of Mandamus will be issued to the respondents directing them to consider the claim of the petitioner for payment of pension according to law. | 1[ds]17. The essential requirement for taking action under the said rule is that the Government servant should have been, continuously absent from duty for over five years. Under this rule it is immaterial whether absence from duty by the government servant was with or without leave so long as it is established that he was absent from duty for a continuous period for over five years. We are referring to this aspect because it is the case of the petitioner that he availed himself of leave with effect from March 11, 1960 and he left the headquarters after obtaining the necessary sanction from his superior Officers. On the other hand, it is the case of the respondents that the petitioner merely putting in an application for leave from March 11, 1960 left the headquarters without obtaining the prior permission of the superiors. It is not necessary for us to deal with this controversy, as under the rules absence for the period stated therein, either with or without leave, are both treated on the same basis18. According to the dates given in the order, the petitioner has not been on his duties for more than five years from March 1, 1960 and that he ceased to be in government employ from March 2, 1965. According to the petitioner this order is illegal because he was on duty till March 10,1960 in which case continuous absence of five years would not be completed on March 2, 1965. But the more serious attack against this order is that there is no question of the petitioner not being on his duties continuously for more than five years. On the other hand, according to him, he has always been ready and willing to do his duty and the respondents have illegally prevented him from joining duty by ignoring the orders of the Civil Court. In this connection, on behalf of the petitioner, Mr. Bishan Narain, learned counsel, has referred us to the details regarding the institution of the title suit No. 86 of 1961 by the petitioner as well as to certain orders passed by that Court. He has also drawn our attention to the letters written by the petitioner to the authorities offering to work and the respondents not sending any reply and ultimately asking the petitioner to join duty in the reverted post, though the order of reversion has been declared illegal by the Munsif, Patna. We have already referred to the averments in the counter-affidavit filed on behalf of the respondents. So far as this aspect is concerned, it is admitted in paragraph 8 of the counter-affidavit that the petitioner was on duty till March 10, 1960 and that he ceased to attend to his duty only from March 11, 1960. Therefore, the averment of the petitioner that he was on duty till March 10, 1960 is accepted as correct by the respondents. Therefore, it follows that even according to the respondents, the petitioner was absent from duty continuously for more than five years only from March 11, 1960 and he ceased to be in government employ on March 2, 1965. Without anything more it can be easy said that this calculation is absolutely erroneous because from the dates mentioned above, the petitioner cannot be considered not to have been on duty for more than five years34. Having due regard to the above decisions, we are of the opinion that the right of the petitioner to receive pension is property under Article 31 (1) and by a mere executive order the State had no power to withhold the same. Similarly, the said claim is also property under Article 19 (1) (f) and it is not saved by sub - article (5) of Article 19. Therefore, it follows that the order dated June 12, 1968 denying the petitioner right to receive pension affects the fundamental right of the petitioner under Articles 19 (1) (f) and 31 (1) of the Constitution, and as such the writ petition under Article 32 is maintainable. It may be that under the Pensions Act (Act 23 of 1871) there is a bar against a civil Court entertaining any suit relating to the matters mentioned therein. That does not stand in the way of a Writ of Mandamus being issued to the State to properly consider the claim of the petitioner for payment of pension according to law35. To conclude: No relief can be granted in respect of the orders dated September 2, 1953 and March 5, 1960 as they are already covered by the decision of the Patna High Court dated May 4, 1967 in Second Appeal No. 640 of 1967. Even assuming that the contention of the petitioner that the order dated September 2, 1953 was not the subject of adjudication in the litigation leading up to the decision of the High Court, in the second appeal, is correct, nevertheless, no relief can be granted as the order has been passed as early as 1953. Further, the representations made by him for cancellation of the said order have been rejected long ago. Further, there is no infringement of any fundamental right of the petitioner by that order. The order dated August 5, 1966 declaring under Rule 76 of the Service Code that the petitioner has ceased to be in Government employ is set aside and quashed. The order dated June 12, 1968 stating that under Rule 46 of the Pension Rules, the Department is unable to grant the petitioner pension is also set aside and quashed. As the petitioner himself claims that he has been retired from service on superannuation, a Writ of Mandamus will be issued to the respondents directing them to consider the claim of the petitioner for payment of pension according to law. | 1 | 9,215 | 1,060 | ### 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:
Punj 1 approved the decision of the learned Judge. The Letters Pateat Bench held that the pension granted to a public servant on his retirement is "property within the meaning of Article 31 (1) of the Constitution and he could be deprived of the same only by an authority of law and that pension does not cease to be property on the mere denial or cancellation of it. It was further held that the character of pension as "property" cannot possibly undergo such mutation at the whim of a particular person or authority. 32. The matter again came up before a Full Bench of the Punjab and Haryana High Court in K.R. Erry v. The State of Punjab, ILR (1967) 1 Punj and Har 278 (FB). The High Court had to consider the nature of the right of an officer to get pension. The majority quoted with approval the principles laid down in the two earlier decisions of the same High Court, referred to above, and held that the pension is not to be treated as a bounty payable on the sweet-will and pleasure of the Government and the right to superannuation pension including its amount is a valuable right vesting in a Government servant. It was further held by the majority that even though an opportunity had already been afforded to the officer on an earlier occasion for showing cause against the imposition of penalty for lapse or misconduct on his part and he has been found guilty, nevertheless, when a cut is sought to be imposed in the quantum of pension payable to an officer on the basis of misconduct already proved against him, a further opportunity to show cause in that regard must be given to the officer. This view regarding the giving of further opportunity was expressed by the learned Judges on the basis of the relevant Punjab Civil Service Rules. But the learned Chief Justice in his dissenting judgment was not prepared to agree with the majority that under such circumstances a further opportunity should be given to an officer when a reduction in the amount of pension payable is made by the State. It is not necessary for us in the case on hand to consider the question whether before taking action by way of reducing or denying the pension on the basis of disciplinary action already taken, a further notice to show cause should be given to an officer. That question does not arise for consideration before us. Nor are we concerned with the further question regarding the procedure, if any, to be adopted by the authorities before reducing or withholding the pension for the first time after the retirement of an officer. Hence we express no opinion regarding the views expressed by the majority and the minority Judges in the above Punjab High Court decision on this aspect. But we agree with the view of the majority when it has approved its earlier decision that pension is not a bounty payable on the sweet-will and pleasure of the Government and that, on the other hand, the right to pension is a valuable right vesting in a Government servant. 33. This Court in State of Madhya Pradesh v. Ranojirao Shinde, 1968-3 SCR 489 = (AIR 1968 SC 1053 ) had to consider the question whether a "cash grant" is "property" within the meaning of the expression in Articles 19 (1) (f) and 31 (1) of the Constitution. This Court held that it was property, observing "it is obvious that a right to sum of money is property." 34. Having due regard to the above decisions, we are of the opinion that the right of the petitioner to receive pension is property under Article 31 (1) and by a mere executive order the State had no power to withhold the same. Similarly, the said claim is also property under Article 19 (1) (f) and it is not saved by sub - article (5) of Article 19. Therefore, it follows that the order dated June 12, 1968 denying the petitioner right to receive pension affects the fundamental right of the petitioner under Articles 19 (1) (f) and 31 (1) of the Constitution, and as such the writ petition under Article 32 is maintainable. It may be that under the Pensions Act (Act 23 of 1871) there is a bar against a civil Court entertaining any suit relating to the matters mentioned therein. That does not stand in the way of a Writ of Mandamus being issued to the State to properly consider the claim of the petitioner for payment of pension according to law. 35. To conclude: No relief can be granted in respect of the orders dated September 2, 1953 and March 5, 1960 as they are already covered by the decision of the Patna High Court dated May 4, 1967 in Second Appeal No. 640 of 1967. Even assuming that the contention of the petitioner that the order dated September 2, 1953 was not the subject of adjudication in the litigation leading up to the decision of the High Court, in the second appeal, is correct, nevertheless, no relief can be granted as the order has been passed as early as 1953. Further, the representations made by him for cancellation of the said order have been rejected long ago. Further, there is no infringement of any fundamental right of the petitioner by that order. The order dated August 5, 1966 declaring under Rule 76 of the Service Code that the petitioner has ceased to be in Government employ is set aside and quashed. The order dated June 12, 1968 stating that under Rule 46 of the Pension Rules, the Department is unable to grant the petitioner pension is also set aside and quashed. As the petitioner himself claims that he has been retired from service on superannuation, a Writ of Mandamus will be issued to the respondents directing them to consider the claim of the petitioner for payment of pension according to law.
### Response:
1
### Explanation:
17. The essential requirement for taking action under the said rule is that the Government servant should have been, continuously absent from duty for over five years. Under this rule it is immaterial whether absence from duty by the government servant was with or without leave so long as it is established that he was absent from duty for a continuous period for over five years. We are referring to this aspect because it is the case of the petitioner that he availed himself of leave with effect from March 11, 1960 and he left the headquarters after obtaining the necessary sanction from his superior Officers. On the other hand, it is the case of the respondents that the petitioner merely putting in an application for leave from March 11, 1960 left the headquarters without obtaining the prior permission of the superiors. It is not necessary for us to deal with this controversy, as under the rules absence for the period stated therein, either with or without leave, are both treated on the same basis18. According to the dates given in the order, the petitioner has not been on his duties for more than five years from March 1, 1960 and that he ceased to be in government employ from March 2, 1965. According to the petitioner this order is illegal because he was on duty till March 10,1960 in which case continuous absence of five years would not be completed on March 2, 1965. But the more serious attack against this order is that there is no question of the petitioner not being on his duties continuously for more than five years. On the other hand, according to him, he has always been ready and willing to do his duty and the respondents have illegally prevented him from joining duty by ignoring the orders of the Civil Court. In this connection, on behalf of the petitioner, Mr. Bishan Narain, learned counsel, has referred us to the details regarding the institution of the title suit No. 86 of 1961 by the petitioner as well as to certain orders passed by that Court. He has also drawn our attention to the letters written by the petitioner to the authorities offering to work and the respondents not sending any reply and ultimately asking the petitioner to join duty in the reverted post, though the order of reversion has been declared illegal by the Munsif, Patna. We have already referred to the averments in the counter-affidavit filed on behalf of the respondents. So far as this aspect is concerned, it is admitted in paragraph 8 of the counter-affidavit that the petitioner was on duty till March 10, 1960 and that he ceased to attend to his duty only from March 11, 1960. Therefore, the averment of the petitioner that he was on duty till March 10, 1960 is accepted as correct by the respondents. Therefore, it follows that even according to the respondents, the petitioner was absent from duty continuously for more than five years only from March 11, 1960 and he ceased to be in government employ on March 2, 1965. Without anything more it can be easy said that this calculation is absolutely erroneous because from the dates mentioned above, the petitioner cannot be considered not to have been on duty for more than five years34. Having due regard to the above decisions, we are of the opinion that the right of the petitioner to receive pension is property under Article 31 (1) and by a mere executive order the State had no power to withhold the same. Similarly, the said claim is also property under Article 19 (1) (f) and it is not saved by sub - article (5) of Article 19. Therefore, it follows that the order dated June 12, 1968 denying the petitioner right to receive pension affects the fundamental right of the petitioner under Articles 19 (1) (f) and 31 (1) of the Constitution, and as such the writ petition under Article 32 is maintainable. It may be that under the Pensions Act (Act 23 of 1871) there is a bar against a civil Court entertaining any suit relating to the matters mentioned therein. That does not stand in the way of a Writ of Mandamus being issued to the State to properly consider the claim of the petitioner for payment of pension according to law35. To conclude: No relief can be granted in respect of the orders dated September 2, 1953 and March 5, 1960 as they are already covered by the decision of the Patna High Court dated May 4, 1967 in Second Appeal No. 640 of 1967. Even assuming that the contention of the petitioner that the order dated September 2, 1953 was not the subject of adjudication in the litigation leading up to the decision of the High Court, in the second appeal, is correct, nevertheless, no relief can be granted as the order has been passed as early as 1953. Further, the representations made by him for cancellation of the said order have been rejected long ago. Further, there is no infringement of any fundamental right of the petitioner by that order. The order dated August 5, 1966 declaring under Rule 76 of the Service Code that the petitioner has ceased to be in Government employ is set aside and quashed. The order dated June 12, 1968 stating that under Rule 46 of the Pension Rules, the Department is unable to grant the petitioner pension is also set aside and quashed. As the petitioner himself claims that he has been retired from service on superannuation, a Writ of Mandamus will be issued to the respondents directing them to consider the claim of the petitioner for payment of pension according to law.
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JAKIR MALI Vs. STATE OF RAJASTHAN | 1. Leave granted. 2. In this appeal the appellant has questioned the legality and correctness of the order in D.B. Writ Review No.100/2017 dated 7.2.2018 whereby the High Court of Judicature for Rajasthan at Jodhpur has modified the directions contained in para 6 of its order dated 7.3.2017 passed in D.B. Civil Special Appeal No. 115 of 2015. 3. The appellant-workman raised an industrial dispute which was referred by the appropriate Government to Industrial Tribunal-cum-Labour Court for its adjudication. By Award dated 5.7.2001 passed in Industrial Dispute Case No.45 of 1995, the Industrial Tribunal-cum-Labour Court answered the Reference made to it in favour of the appellant and directed the respondent to confer the semi-permanent status w.e.f. 1.11.1991. The writ petition filed by the respondents challenging the said Award was dismissed on 21.10.2002. 4. During the pendency of the above industrial dispute, the appellant was removed from service on 15.12.1992. The removal of service was also the subject-matter of industrial dispute and the appropriate Government referred the dispute to Labour Court and the case was registered as Labour Dispute Case No.85 of 1997. 5. By an Award dated 28.10.2004 passed in said Labour Dispute, the Labour Court answered the Reference in favour of the appellant. The Labour Court declared the removal of the appellant illegal being in violation of the provisions of Section 25F of the Industrial Disputes Act, 1947. The Labour Court further directed the respondents to reinstate the appellant with 50% back wages accrued from the date the appellant raised the dispute. 6. Being aggrieved by the said Award, the respondents preferred writ petition before the High Court of Rajasthan. Learned Single Judge of the Rajasthan High Court by order dated 27.11.2013, held that the appellant was entitled for reinstatement in service with all continuity and consequential benefits but denied the back wages to the appellant. Further, the Learned Single Judge directed the respondents to comply the order on or before 15.3.2014. This order was passed on the basis of a proposal made by the appellant, which was in consonance with the policy of the Government of Rajasthan circulated under Circular dated 23.10.2013. 7. The respondents challenged the order of the Learned Single Judge before the Division Bench. The Division Bench by its order dated 7.3.2017 disposed of the writ appeal by observing as under: 4. In our opinion, the view taken by the learned Single Judge is on concession given by the respondent workman that they will forego back wages therefore, the circular dated 23.10.2013 issued by the State Government was accepted and the writ petition was disposed of. 5. We are in complete agreement with the view taken by the learned Single Judge. No case for interference is made out. 6. The appeal stands dismissed. The compliance of the order of the Learned Single Judge will be made within a period of 30 days from today and the respondent workman will be paid full salary form 7.1.1997. 8. The respondents re-instated the appellant on 21.4.2017. 9. However, the Division Bench has reviewed the order by modifying the directions contained in para 6 of the order dated 7.3.2017. 10. Having heard leaned counsel for the parties, we are of the view that the Division Bench was not justified in denying arrears of salary to the appellant. As noted above, the Learned Single Judge by order dated 27.11.2013 has taken into consideration the entire facts and circumstances of the case while directing re-instatement of the appellant in service. However, the back wages were denied on the basis of the consent of the appellant. The consent was given by the appellant to forego back wages on the basis of a Circular dated 23.10.2013. In terms of this order, the respondents ought to have reinstated the appellant on 15.3.2014. The appeal filed by the respondents was dismissed by the Division Bench on 7.3.2017. Para 6 of this order makes it clear that the respondents have to re-instate the appellant and to pay full salary from 7.1.1997. 11. We are of the view that the Division Bench was not justified in modifying para 6 of the order dated 7.3.2017. | 1[ds]10. Having heard leaned counsel for the parties, we are of the view that the Division Bench was not justified in denying arrears of salary to the appellant. As noted above, the Learned Single Judge by order dated 27.11.2013 has taken into consideration the entire facts and circumstances of the case while directing re-instatement of the appellant in service. However, the back wages were denied on the basis of the consent of the appellant. The consent was given by the appellant to forego back wages on the basis of a Circular dated 23.10.2013. In terms of this order, the respondents ought to have reinstated the appellant on 15.3.2014. The appeal filed by the respondents was dismissed by the Division Bench on 7.3.2017. Para 6 of this order makes it clear that the respondents have to re-instate the appellant and to pay full salary from 7.1.1997.11. We are of the view that the Division Bench was not justified in modifying para 6 of the order dated 7.3.2017. | 1 | 752 | 183 | ### 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. Leave granted. 2. In this appeal the appellant has questioned the legality and correctness of the order in D.B. Writ Review No.100/2017 dated 7.2.2018 whereby the High Court of Judicature for Rajasthan at Jodhpur has modified the directions contained in para 6 of its order dated 7.3.2017 passed in D.B. Civil Special Appeal No. 115 of 2015. 3. The appellant-workman raised an industrial dispute which was referred by the appropriate Government to Industrial Tribunal-cum-Labour Court for its adjudication. By Award dated 5.7.2001 passed in Industrial Dispute Case No.45 of 1995, the Industrial Tribunal-cum-Labour Court answered the Reference made to it in favour of the appellant and directed the respondent to confer the semi-permanent status w.e.f. 1.11.1991. The writ petition filed by the respondents challenging the said Award was dismissed on 21.10.2002. 4. During the pendency of the above industrial dispute, the appellant was removed from service on 15.12.1992. The removal of service was also the subject-matter of industrial dispute and the appropriate Government referred the dispute to Labour Court and the case was registered as Labour Dispute Case No.85 of 1997. 5. By an Award dated 28.10.2004 passed in said Labour Dispute, the Labour Court answered the Reference in favour of the appellant. The Labour Court declared the removal of the appellant illegal being in violation of the provisions of Section 25F of the Industrial Disputes Act, 1947. The Labour Court further directed the respondents to reinstate the appellant with 50% back wages accrued from the date the appellant raised the dispute. 6. Being aggrieved by the said Award, the respondents preferred writ petition before the High Court of Rajasthan. Learned Single Judge of the Rajasthan High Court by order dated 27.11.2013, held that the appellant was entitled for reinstatement in service with all continuity and consequential benefits but denied the back wages to the appellant. Further, the Learned Single Judge directed the respondents to comply the order on or before 15.3.2014. This order was passed on the basis of a proposal made by the appellant, which was in consonance with the policy of the Government of Rajasthan circulated under Circular dated 23.10.2013. 7. The respondents challenged the order of the Learned Single Judge before the Division Bench. The Division Bench by its order dated 7.3.2017 disposed of the writ appeal by observing as under: 4. In our opinion, the view taken by the learned Single Judge is on concession given by the respondent workman that they will forego back wages therefore, the circular dated 23.10.2013 issued by the State Government was accepted and the writ petition was disposed of. 5. We are in complete agreement with the view taken by the learned Single Judge. No case for interference is made out. 6. The appeal stands dismissed. The compliance of the order of the Learned Single Judge will be made within a period of 30 days from today and the respondent workman will be paid full salary form 7.1.1997. 8. The respondents re-instated the appellant on 21.4.2017. 9. However, the Division Bench has reviewed the order by modifying the directions contained in para 6 of the order dated 7.3.2017. 10. Having heard leaned counsel for the parties, we are of the view that the Division Bench was not justified in denying arrears of salary to the appellant. As noted above, the Learned Single Judge by order dated 27.11.2013 has taken into consideration the entire facts and circumstances of the case while directing re-instatement of the appellant in service. However, the back wages were denied on the basis of the consent of the appellant. The consent was given by the appellant to forego back wages on the basis of a Circular dated 23.10.2013. In terms of this order, the respondents ought to have reinstated the appellant on 15.3.2014. The appeal filed by the respondents was dismissed by the Division Bench on 7.3.2017. Para 6 of this order makes it clear that the respondents have to re-instate the appellant and to pay full salary from 7.1.1997. 11. We are of the view that the Division Bench was not justified in modifying para 6 of the order dated 7.3.2017.
### Response:
1
### Explanation:
10. Having heard leaned counsel for the parties, we are of the view that the Division Bench was not justified in denying arrears of salary to the appellant. As noted above, the Learned Single Judge by order dated 27.11.2013 has taken into consideration the entire facts and circumstances of the case while directing re-instatement of the appellant in service. However, the back wages were denied on the basis of the consent of the appellant. The consent was given by the appellant to forego back wages on the basis of a Circular dated 23.10.2013. In terms of this order, the respondents ought to have reinstated the appellant on 15.3.2014. The appeal filed by the respondents was dismissed by the Division Bench on 7.3.2017. Para 6 of this order makes it clear that the respondents have to re-instate the appellant and to pay full salary from 7.1.1997.11. We are of the view that the Division Bench was not justified in modifying para 6 of the order dated 7.3.2017.
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INCOME TAX OFFICER WARD NO.16(2) Vs. M/S TECHSPAN INDIA PRIVATE LTD.(FORMERLY KNOWN AS M/S. TECHSPAN INDIA LTD.) THROUGH ITS MANAGING DIR | would have the consequence of conferring arbitrary powers on the assessing officer who may even initiate such re-assessment proceedings merely on his change of opinion on the basis of same facts and circumstances which has already been considered by him during the original assessment proceedings. Such could not be the intention of the legislature. The said provision was incorporated in the scheme of the IT Act so as to empower the Assessing Authorities to re-assess any income on the ground which was not brought on record during the original proceedings and escaped his knowledge; and the said fact would have material bearing on the outcome of the relevant assessment order. 9. Section 147 of the IT Act does not allow the re-assessment of an income merely because of the fact that the assessing officer has a change of opinion with regard to the interpretation of law differently on the facts that were well within his knowledge even at the time of assessment. Doing so would have the effect of giving the assessing officer the power of review and Section 147 confers the power to re-assess and not the power to review. 10. To check whether it is a case of change of opinion or not one has to see its meaning in literal as well as legal terms. The word change of opinion implies formulation of opinion and then a change thereof. In terms of assessment proceedings, it means formulation of belief by an assessing officer resulting from what he thinks on a particular question. It is a result of understanding, experience and reflection. 11. It is well settled and held by this court in a catena of judgments and it would be sufficient to refer Commissioner of Income Tax, Delhi vs. Kelvinator of India Ltd. (2010) 320 ITR 561(SC) wherein this Court has held as under:- ?5….where the Assessing Officer has reason to believe that income has escaped assessment, confers jurisdiction to re- open the assessment. Therefore, post-1st April, 1989, power to re-open is much wider. However, one needs to give a schematic interpretation to the words "reason to believe"….. Section 147 would give arbitrary powers to the Assessing Officer to re-open assessments on the basis of "mere change of opinion", which cannot be per se reason to re-open. 6. We must also keep in mind the conceptual difference between power to review and power to re-assess. The Assessing Officer has no power to review; he has the power to re-assess. But re-assessment has to be based on fulfillment of certain pre-condition and if the concept of "change of opinion" is removed, as contended on behalf of the Department, then, in the garb of re-opening the assessment, review would take place. 7. One must treat the concept of "change of opinion" as an in-built test to check abuse of power by the Assessing Officer. Hence, after 1st April, 1989, Assessing Officer has power to re-open, provided there is "tangible material" to come to the conclusion that there is escapement of income from assessment. Reasons must have a live link with the formation of the belief.? 12. Before interfering with the proposed re-opening of the assessment on the ground that the same is based only on a change in opinion, the court ought to verify whether the assessment earlier made has either expressly or by necessary implication expressed an opinion on a matter which is the basis of the alleged escapement of income that was taxable. If the assessment order is non-speaking, cryptic or perfunctory in nature, it may be difficult to attribute to the assessing officer any opinion on the questions that are raised in the proposed re-assessment proceedings. Every attempt to bring to tax, income that has escaped assessment, cannot be absorbed by judicial intervention on an assumed change of opinion even in cases where the order of assessment does not address itself to a given aspect sought to be examined in the re-assessment proceedings. 13. The fact in controversy in this case is with regard to the deduction under Section 10A of the IT Act which was allegedly allowed in excess. The show cause notice dated 10.02.2005 reflects the ground for re-assessment in the present case, that is, the deduction allowed in excess under Section 10A and, therefore, the income has escaped assessment to the tune of Rs. 57,36,811. In the order in question dated 17.08.2005, the reason purportedly given for rejecting the objections was that the assessee was not maintaining any separate books of accounts for the two categories, i.e., software development and human resource development, on which it has declared income separately. However, a bare perusal of notice dated 09.03.2004 which was issued in the original assessment proceedings under Section 143 makes it clear that the point on which the re-assessment proceedings were initiated, was well considered in the original proceedings. In fact, the very basis of issuing the show cause notice dated 09.03.2004 was that the assessee was not maintaining any separate books of account for the said two categories and the details filed do not reveal proportional allocation of common expenses be made to these categories. Even the said show cause notice suggested how proportional allocation should be done. All these things leads to an unavoidable conclusion that the question as to how and to what extent deduction should be allowed under Section 10A of the IT Act was well considered in the original assessment proceedings itself. Hence, initiation of the re-assessment proceedings under Section 147 by issuing a notice under Section 148 merely because of the fact that now the Assessing Officer is of the view that the deduction under Section 10A was allowed in excess, was based on nothing but a change of opinion on the same facts and circumstances which were already in his knowledge even during the original assessment proceedings. 14. In light of the forgoing discussion, we are of the view that impugned judgment and order of the High Court dated 24.02.2006 does not call for any interference. | 0[ds]Before interfering with the proposedof the assessment on the ground that the same is based only on a change in opinion, the court ought to verify whether the assessment earlier made has either expressly or by necessary implication expressed an opinion on a matter which is the basis of the alleged escapement of income that was taxable. If the assessment order iscryptic or perfunctory in nature, it may be difficult to attribute to the assessing officer any opinion on the questions that are raised in the proposedproceedings. Every attempt to bring to tax, income that has escaped assessment, cannot be absorbed by judicial intervention on an assumed change of opinion even in cases where the order of assessment does not address itself to a given aspect sought to be examined in theThe fact in controversy in this case is with regard to the deduction under Section 10A of the IT Act which was allegedly allowed in excess. The show cause notice dated 10.02.2005 reflects the ground forin the present case, that is, the deduction allowed in excess under Section 10A and, therefore, the income has escaped assessment to the tune of Rs. 57,36,811. In the order in question dated 17.08.2005, the reason purportedly given for rejecting the objections was that the assessee was not maintaining any separate books of accounts for the two categories, i.e., software development and human resource development, on which it has declared income separately. However, a bare perusal of notice dated 09.03.2004 which was issued in the original assessment proceedings under Section 143 makes it clear that the point on which theproceedings were initiated, was well considered in the original proceedings. In fact, the very basis of issuing the show cause notice dated 09.03.2004 was that the assessee was not maintaining any separate books of account for the said two categories and the details filed do not reveal proportional allocation of common expenses be made to these categories. Even the said show cause notice suggested how proportional allocation should be done. All these things leads to an unavoidable conclusion that the question as to how and to what extent deduction should be allowed under Section 10A of the IT Act was well considered in the original assessment proceedings itself. Hence, initiation of theproceedings under Section 147 by issuing a notice under Section 148 merely because of the fact that now the Assessing Officer is of the view that the deduction under Section 10A was allowed in excess, was based on nothing but a change of opinion on the same facts and circumstances which were already in his knowledge even during the original assessmentIn light of the forgoing discussion, we are of the view that impugned judgment and order of the High Court dated 24.02.2006 does not call for any | 0 | 2,584 | 496 | ### 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:
would have the consequence of conferring arbitrary powers on the assessing officer who may even initiate such re-assessment proceedings merely on his change of opinion on the basis of same facts and circumstances which has already been considered by him during the original assessment proceedings. Such could not be the intention of the legislature. The said provision was incorporated in the scheme of the IT Act so as to empower the Assessing Authorities to re-assess any income on the ground which was not brought on record during the original proceedings and escaped his knowledge; and the said fact would have material bearing on the outcome of the relevant assessment order. 9. Section 147 of the IT Act does not allow the re-assessment of an income merely because of the fact that the assessing officer has a change of opinion with regard to the interpretation of law differently on the facts that were well within his knowledge even at the time of assessment. Doing so would have the effect of giving the assessing officer the power of review and Section 147 confers the power to re-assess and not the power to review. 10. To check whether it is a case of change of opinion or not one has to see its meaning in literal as well as legal terms. The word change of opinion implies formulation of opinion and then a change thereof. In terms of assessment proceedings, it means formulation of belief by an assessing officer resulting from what he thinks on a particular question. It is a result of understanding, experience and reflection. 11. It is well settled and held by this court in a catena of judgments and it would be sufficient to refer Commissioner of Income Tax, Delhi vs. Kelvinator of India Ltd. (2010) 320 ITR 561(SC) wherein this Court has held as under:- ?5….where the Assessing Officer has reason to believe that income has escaped assessment, confers jurisdiction to re- open the assessment. Therefore, post-1st April, 1989, power to re-open is much wider. However, one needs to give a schematic interpretation to the words "reason to believe"….. Section 147 would give arbitrary powers to the Assessing Officer to re-open assessments on the basis of "mere change of opinion", which cannot be per se reason to re-open. 6. We must also keep in mind the conceptual difference between power to review and power to re-assess. The Assessing Officer has no power to review; he has the power to re-assess. But re-assessment has to be based on fulfillment of certain pre-condition and if the concept of "change of opinion" is removed, as contended on behalf of the Department, then, in the garb of re-opening the assessment, review would take place. 7. One must treat the concept of "change of opinion" as an in-built test to check abuse of power by the Assessing Officer. Hence, after 1st April, 1989, Assessing Officer has power to re-open, provided there is "tangible material" to come to the conclusion that there is escapement of income from assessment. Reasons must have a live link with the formation of the belief.? 12. Before interfering with the proposed re-opening of the assessment on the ground that the same is based only on a change in opinion, the court ought to verify whether the assessment earlier made has either expressly or by necessary implication expressed an opinion on a matter which is the basis of the alleged escapement of income that was taxable. If the assessment order is non-speaking, cryptic or perfunctory in nature, it may be difficult to attribute to the assessing officer any opinion on the questions that are raised in the proposed re-assessment proceedings. Every attempt to bring to tax, income that has escaped assessment, cannot be absorbed by judicial intervention on an assumed change of opinion even in cases where the order of assessment does not address itself to a given aspect sought to be examined in the re-assessment proceedings. 13. The fact in controversy in this case is with regard to the deduction under Section 10A of the IT Act which was allegedly allowed in excess. The show cause notice dated 10.02.2005 reflects the ground for re-assessment in the present case, that is, the deduction allowed in excess under Section 10A and, therefore, the income has escaped assessment to the tune of Rs. 57,36,811. In the order in question dated 17.08.2005, the reason purportedly given for rejecting the objections was that the assessee was not maintaining any separate books of accounts for the two categories, i.e., software development and human resource development, on which it has declared income separately. However, a bare perusal of notice dated 09.03.2004 which was issued in the original assessment proceedings under Section 143 makes it clear that the point on which the re-assessment proceedings were initiated, was well considered in the original proceedings. In fact, the very basis of issuing the show cause notice dated 09.03.2004 was that the assessee was not maintaining any separate books of account for the said two categories and the details filed do not reveal proportional allocation of common expenses be made to these categories. Even the said show cause notice suggested how proportional allocation should be done. All these things leads to an unavoidable conclusion that the question as to how and to what extent deduction should be allowed under Section 10A of the IT Act was well considered in the original assessment proceedings itself. Hence, initiation of the re-assessment proceedings under Section 147 by issuing a notice under Section 148 merely because of the fact that now the Assessing Officer is of the view that the deduction under Section 10A was allowed in excess, was based on nothing but a change of opinion on the same facts and circumstances which were already in his knowledge even during the original assessment proceedings. 14. In light of the forgoing discussion, we are of the view that impugned judgment and order of the High Court dated 24.02.2006 does not call for any interference.
### Response:
0
### Explanation:
Before interfering with the proposedof the assessment on the ground that the same is based only on a change in opinion, the court ought to verify whether the assessment earlier made has either expressly or by necessary implication expressed an opinion on a matter which is the basis of the alleged escapement of income that was taxable. If the assessment order iscryptic or perfunctory in nature, it may be difficult to attribute to the assessing officer any opinion on the questions that are raised in the proposedproceedings. Every attempt to bring to tax, income that has escaped assessment, cannot be absorbed by judicial intervention on an assumed change of opinion even in cases where the order of assessment does not address itself to a given aspect sought to be examined in theThe fact in controversy in this case is with regard to the deduction under Section 10A of the IT Act which was allegedly allowed in excess. The show cause notice dated 10.02.2005 reflects the ground forin the present case, that is, the deduction allowed in excess under Section 10A and, therefore, the income has escaped assessment to the tune of Rs. 57,36,811. In the order in question dated 17.08.2005, the reason purportedly given for rejecting the objections was that the assessee was not maintaining any separate books of accounts for the two categories, i.e., software development and human resource development, on which it has declared income separately. However, a bare perusal of notice dated 09.03.2004 which was issued in the original assessment proceedings under Section 143 makes it clear that the point on which theproceedings were initiated, was well considered in the original proceedings. In fact, the very basis of issuing the show cause notice dated 09.03.2004 was that the assessee was not maintaining any separate books of account for the said two categories and the details filed do not reveal proportional allocation of common expenses be made to these categories. Even the said show cause notice suggested how proportional allocation should be done. All these things leads to an unavoidable conclusion that the question as to how and to what extent deduction should be allowed under Section 10A of the IT Act was well considered in the original assessment proceedings itself. Hence, initiation of theproceedings under Section 147 by issuing a notice under Section 148 merely because of the fact that now the Assessing Officer is of the view that the deduction under Section 10A was allowed in excess, was based on nothing but a change of opinion on the same facts and circumstances which were already in his knowledge even during the original assessmentIn light of the forgoing discussion, we are of the view that impugned judgment and order of the High Court dated 24.02.2006 does not call for any
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Hindustan Steel Works Construction Ltd Vs. Limestone and Dolomite Mines Welfare and Cess Commissioner and Ors | 1. The appellant herein, Hindustan Steelworks Construction Limited, is a company owned by the Government of India. It owns mines from which limestone is extracted. It is the case of the appellant that it is using such limestone in the construction work for expansion of Hindustan Steel Ltd., Bhilai Steel Plants, which is engaged in the production of iron and steel. Under Section 3 of the Limestone and Dolomite Mines Labour Welfare Fund Act, 1972, it is required to pay a duty of excise at such rate not exceeding Rs. 1 per metric tonne of limestone extracted and used for the purposes as afore stated. That has been put to challenge. It would therefore be essential to reproduce Section 3 which is as follows: 3. With effect from such date as the Central Government may, by notification in the Official Gazette, appoint, there shall be levied and collected as a Cess for the purposes of this Act on so much of Limestone and Dolomites produced in any mine. (i) As is sold or otherwise disposed of to the occupier of any factory; or (ii) as is used by the owner of such mine for any purpose in connection with the manufacture of cement, iron, steel, ferroalloys, alloy steel, chemicals, sugar, paper, fertilizers, refractories Iron Ore pelletisation or such other article or goods or class of articles or goods, as the Central Government, may, from time to time, specify by notification in the official Gazette, a duty of excise, at such rate not exceeding one rupee per metric tonne of Limestone or Dolomite, as the cess may be, as the Central Government may, from time to time, fix by notification in the official Gazette. EXPLANATION: Where the owner of any Limestone or Dolomite Mine is also the occupier of any factory, then, for the purposes of Clause (ii), all Limestone or the Dolomite, as the case may be, produced in the mine and not sold or otherwise disposed of to the occupier of any other factory shall be deemed, unless the contrary is proved, to have been used by such owner for any purpose in connection with the manufacture of any article or goods referred to in or specified under Clause (ii). 2. Attention engaged before the High Court, as also here, is whether the above provision be construed narrowly or widely. The High Court has taken the view that the expression used therein for any purpose in connection with the manufacture of ...iron, steel... is of wide amplitude and will embrace within its scope such activities as have nexus with its activity of manufacture of iron and steel. 3. A number of commodities/industries find covered in Sub-section (ii) of Section 3 and in almost all of them (leaving apart cement and chemicals) the use of limestone per se is not directly towards their manufacture. If it is ruled that no limestone is required for the manufacture of iron and steel in the context of Sub-section (ii) of Section 3, such narrow reading would lead to the provision being rendered otiose. It has to be borne in mind that the primary purpose of the Act is to build a Labour Welfare Fund, a measure well deserved for the Labour, and the excise duty imposed is in the nature of a cess to achieve that purpose. So the provision by its own compulsion requires to be construed widely as otherwise the purpose of legislation would be frustrated. Therefore limestone used by an owner extracted from his mine, for any purpose relatable to and in connection with the manufacture of commodities, including iron and steel, would attract payment of excise duty at the rates specified therein. Such interpretation would only be the purposive one and commended by the language employed. We therefore hold accordingly. | 0[ds]3. A number of commodities/industries find covered in Sub-section (ii) of Section 3 and in almost all of them (leaving apart cement and chemicals) the use of limestone per se is not directly towards their manufacture. If it is ruled that no limestone is required for the manufacture of iron and steel in the context of Sub-section (ii) of Section 3, such narrow reading would lead to the provision being rendered otiose. It has to be borne in mind that the primary purpose of the Act is to build a Labour Welfare Fund, a measure well deserved for the Labour, and the excise duty imposed is in the nature of a cess to achieve that purpose. So the provision by its own compulsion requires to be construed widely as otherwise the purpose of legislation would be frustrated. Therefore limestone used by an owner extracted from his mine, for any purpose relatable to and in connection with the manufacture of commodities, including iron and steel, would attract payment of excise duty at the rates specified therein. Such interpretation would only be the purposive one and commended by the language employed. We therefore hold accordingly. | 0 | 716 | 217 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
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1. The appellant herein, Hindustan Steelworks Construction Limited, is a company owned by the Government of India. It owns mines from which limestone is extracted. It is the case of the appellant that it is using such limestone in the construction work for expansion of Hindustan Steel Ltd., Bhilai Steel Plants, which is engaged in the production of iron and steel. Under Section 3 of the Limestone and Dolomite Mines Labour Welfare Fund Act, 1972, it is required to pay a duty of excise at such rate not exceeding Rs. 1 per metric tonne of limestone extracted and used for the purposes as afore stated. That has been put to challenge. It would therefore be essential to reproduce Section 3 which is as follows: 3. With effect from such date as the Central Government may, by notification in the Official Gazette, appoint, there shall be levied and collected as a Cess for the purposes of this Act on so much of Limestone and Dolomites produced in any mine. (i) As is sold or otherwise disposed of to the occupier of any factory; or (ii) as is used by the owner of such mine for any purpose in connection with the manufacture of cement, iron, steel, ferroalloys, alloy steel, chemicals, sugar, paper, fertilizers, refractories Iron Ore pelletisation or such other article or goods or class of articles or goods, as the Central Government, may, from time to time, specify by notification in the official Gazette, a duty of excise, at such rate not exceeding one rupee per metric tonne of Limestone or Dolomite, as the cess may be, as the Central Government may, from time to time, fix by notification in the official Gazette. EXPLANATION: Where the owner of any Limestone or Dolomite Mine is also the occupier of any factory, then, for the purposes of Clause (ii), all Limestone or the Dolomite, as the case may be, produced in the mine and not sold or otherwise disposed of to the occupier of any other factory shall be deemed, unless the contrary is proved, to have been used by such owner for any purpose in connection with the manufacture of any article or goods referred to in or specified under Clause (ii). 2. Attention engaged before the High Court, as also here, is whether the above provision be construed narrowly or widely. The High Court has taken the view that the expression used therein for any purpose in connection with the manufacture of ...iron, steel... is of wide amplitude and will embrace within its scope such activities as have nexus with its activity of manufacture of iron and steel. 3. A number of commodities/industries find covered in Sub-section (ii) of Section 3 and in almost all of them (leaving apart cement and chemicals) the use of limestone per se is not directly towards their manufacture. If it is ruled that no limestone is required for the manufacture of iron and steel in the context of Sub-section (ii) of Section 3, such narrow reading would lead to the provision being rendered otiose. It has to be borne in mind that the primary purpose of the Act is to build a Labour Welfare Fund, a measure well deserved for the Labour, and the excise duty imposed is in the nature of a cess to achieve that purpose. So the provision by its own compulsion requires to be construed widely as otherwise the purpose of legislation would be frustrated. Therefore limestone used by an owner extracted from his mine, for any purpose relatable to and in connection with the manufacture of commodities, including iron and steel, would attract payment of excise duty at the rates specified therein. Such interpretation would only be the purposive one and commended by the language employed. We therefore hold accordingly.
### Response:
0
### Explanation:
3. A number of commodities/industries find covered in Sub-section (ii) of Section 3 and in almost all of them (leaving apart cement and chemicals) the use of limestone per se is not directly towards their manufacture. If it is ruled that no limestone is required for the manufacture of iron and steel in the context of Sub-section (ii) of Section 3, such narrow reading would lead to the provision being rendered otiose. It has to be borne in mind that the primary purpose of the Act is to build a Labour Welfare Fund, a measure well deserved for the Labour, and the excise duty imposed is in the nature of a cess to achieve that purpose. So the provision by its own compulsion requires to be construed widely as otherwise the purpose of legislation would be frustrated. Therefore limestone used by an owner extracted from his mine, for any purpose relatable to and in connection with the manufacture of commodities, including iron and steel, would attract payment of excise duty at the rates specified therein. Such interpretation would only be the purposive one and commended by the language employed. We therefore hold accordingly.
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S.M. Saiyad Vs. Baroda Municipal Corporation Baroda | period the appellant was litigating in the Civil Court was granted.2. Appellant was dismissed from the service of the respondent on December 12, 1969. After some litigation in the Civil Courts ultimately a reference was made to the Labour Court whether there was justification for the dismissal of the appellant from the service of the respondent.3. The Labour Court by its award dated September 6, 1979 directed that there appellant be reinstated in service but declined to grant back wages. In the special civil application filed by the appellant under Article 226 of the Constitution in Gujarat High Court, a Division Bench of the High Court modified the award in respect of back wages by awarding back wages for the period October 26, 1976 till January 18, 1980 the date on which appellant was reinstated in service. The High Court declined to interfere with the award refusing back wages for the earlier period on the ground that the appellant was seeking relief if reinstatement in the Civil Court which had no jurisdiction to grant the same and for such lapse on the part of the appellant the respondent cannot be asked to shoulder the burden of back wages.4. The only question that arises for consideration in this appeal is whether the appellant is entitled to claim back wages for the period December 12, 1969 the day on which he was dismissed from service till October 26, 1976 from which date onward the appellant has been awarded back wages by the modification of the award by the High court. The appellant seeks back wages for the period December 12, 1969 to October 26, 1976. This period according to the respondent has to be divided in two parts : (1) from December 12, 1969 to January 20, 1972 when the appellant was enrolled as an advocate, and (2) for the period January 21, 1976 to October 26, 1976 from which date he has already been awarded back wages. It was sub-mitted on behalf of the respondent that the appellant himself has admitted that since his being enrolled as an advocate he was earning Rs 150 per month which aspect must be borne in mind while considering the submission of the appellant for the award of back wages.5. The High Court declined to grant back wages for the period the appellant was seeking relief of reinstatement in Civil Court. It may be recalled that the appellant has been reinstated in service meaning thereby that the dismissal of the appellant from the service of the respondent was found to be invalid and a declaration followed that the appellant continued to be in service. It is in the context of these facts that we have to examine the submission that the High Court was not justified in refusing the back wages on the only ground that the appellant sought relief from a forum which had no jurisdiction to grant the same. When the appellant was dismissed from service he was not a qualified lawyer. He must have sought assistance and advice from a qualified legal practitioner and then approached the Civil Court for relief or reinstatement. The appellant must have gone in search of justice to a forum to which he must have been advised to approach but ultimately because of complexities of the justice system it transpired that he cannot get relief from that forum. He cannot be faulted for this outcome of technicalities of jurisdiction. Now if on this account the appellant is declined back wages be suffers double jeopardy through no fault of his, in that not only all wages are directed (sic) but also delay occurred in getting reinstatement. It this denial justified when the appellant could not be blamed for approaching a forum under competent legal advice. This would amount to imposing a penalty which with respect to the High Court the appellant did not deserve. On this lean ground we find it difficult to depart from the normal rule that on dismissal order being found to be invalid and the direction for reinstatement having been given the workman would be entitled to full back wages, unless the same can be denied on some relevant grounds. We are of the opinion that the denial of back wages for a portion of period for the reason that he was prosecuting remedy in a wrong forum would not be a relevant consideration for refusal of back wages. As a corollary to this finding the appellant would be entitled to back wages for the whole of the period December 12, 1969 to October 26, 1976 and straightway we would have awarded the same but further enquiry becomes necessary on account of one more aspect brought to our notice.6. Appellant enrolled himself as an advocate after taking requisite educational qualification on January 20, 1972. It was pointed out to us that the appellant admitted that he was earning Rs 150 p.m. since he started his legal practice. It was therefore, urged that no back wages for the period January 20, 1972 to October 26, 1976 should be awarded. We are not impressed. Undoubtedly the respondent will be entitled to deduct the amount which the appellant was admittedly earning from the back wages payable to him. The question is from what date deduction at the rate of Rs 150 p.m. should be permitted.7. Appellant contended and in our opinion rightly that deduction at the rate of Rs 150 p.m. should not commence from the very day he was enrolled as an advocate because it is common knowledge that no one earns from the first day and therefore a reasonable period must be set apart from finding a footing in the profession. The contention deserves consideration. The appellant himself has been rather loose in his statement. It would be reasonable to hold that he must have at least started earning at the rate of Rs 150 p.m. as stated by him after the lapse of one year from the date he was enrolled as an advocate. | 1[ds]7. Appellant contended and in our opinion rightly that deduction at the rate of Rs 150 p.m. should not commence from the very day he was enrolled as an advocate because it is common knowledge that no one earns from the first day and therefore a reasonable period must be set apart from finding a footing in the profession. The contention deserves consideration. The appellant himself has been rather loose in his statement. It would be reasonable to hold that he must have at least started earning at the rate of Rs 150 p.m. as stated by him after the lapse of one year from the date he was enrolled as an advocate. | 1 | 1,082 | 122 | ### 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:
period the appellant was litigating in the Civil Court was granted.2. Appellant was dismissed from the service of the respondent on December 12, 1969. After some litigation in the Civil Courts ultimately a reference was made to the Labour Court whether there was justification for the dismissal of the appellant from the service of the respondent.3. The Labour Court by its award dated September 6, 1979 directed that there appellant be reinstated in service but declined to grant back wages. In the special civil application filed by the appellant under Article 226 of the Constitution in Gujarat High Court, a Division Bench of the High Court modified the award in respect of back wages by awarding back wages for the period October 26, 1976 till January 18, 1980 the date on which appellant was reinstated in service. The High Court declined to interfere with the award refusing back wages for the earlier period on the ground that the appellant was seeking relief if reinstatement in the Civil Court which had no jurisdiction to grant the same and for such lapse on the part of the appellant the respondent cannot be asked to shoulder the burden of back wages.4. The only question that arises for consideration in this appeal is whether the appellant is entitled to claim back wages for the period December 12, 1969 the day on which he was dismissed from service till October 26, 1976 from which date onward the appellant has been awarded back wages by the modification of the award by the High court. The appellant seeks back wages for the period December 12, 1969 to October 26, 1976. This period according to the respondent has to be divided in two parts : (1) from December 12, 1969 to January 20, 1972 when the appellant was enrolled as an advocate, and (2) for the period January 21, 1976 to October 26, 1976 from which date he has already been awarded back wages. It was sub-mitted on behalf of the respondent that the appellant himself has admitted that since his being enrolled as an advocate he was earning Rs 150 per month which aspect must be borne in mind while considering the submission of the appellant for the award of back wages.5. The High Court declined to grant back wages for the period the appellant was seeking relief of reinstatement in Civil Court. It may be recalled that the appellant has been reinstated in service meaning thereby that the dismissal of the appellant from the service of the respondent was found to be invalid and a declaration followed that the appellant continued to be in service. It is in the context of these facts that we have to examine the submission that the High Court was not justified in refusing the back wages on the only ground that the appellant sought relief from a forum which had no jurisdiction to grant the same. When the appellant was dismissed from service he was not a qualified lawyer. He must have sought assistance and advice from a qualified legal practitioner and then approached the Civil Court for relief or reinstatement. The appellant must have gone in search of justice to a forum to which he must have been advised to approach but ultimately because of complexities of the justice system it transpired that he cannot get relief from that forum. He cannot be faulted for this outcome of technicalities of jurisdiction. Now if on this account the appellant is declined back wages be suffers double jeopardy through no fault of his, in that not only all wages are directed (sic) but also delay occurred in getting reinstatement. It this denial justified when the appellant could not be blamed for approaching a forum under competent legal advice. This would amount to imposing a penalty which with respect to the High Court the appellant did not deserve. On this lean ground we find it difficult to depart from the normal rule that on dismissal order being found to be invalid and the direction for reinstatement having been given the workman would be entitled to full back wages, unless the same can be denied on some relevant grounds. We are of the opinion that the denial of back wages for a portion of period for the reason that he was prosecuting remedy in a wrong forum would not be a relevant consideration for refusal of back wages. As a corollary to this finding the appellant would be entitled to back wages for the whole of the period December 12, 1969 to October 26, 1976 and straightway we would have awarded the same but further enquiry becomes necessary on account of one more aspect brought to our notice.6. Appellant enrolled himself as an advocate after taking requisite educational qualification on January 20, 1972. It was pointed out to us that the appellant admitted that he was earning Rs 150 p.m. since he started his legal practice. It was therefore, urged that no back wages for the period January 20, 1972 to October 26, 1976 should be awarded. We are not impressed. Undoubtedly the respondent will be entitled to deduct the amount which the appellant was admittedly earning from the back wages payable to him. The question is from what date deduction at the rate of Rs 150 p.m. should be permitted.7. Appellant contended and in our opinion rightly that deduction at the rate of Rs 150 p.m. should not commence from the very day he was enrolled as an advocate because it is common knowledge that no one earns from the first day and therefore a reasonable period must be set apart from finding a footing in the profession. The contention deserves consideration. The appellant himself has been rather loose in his statement. It would be reasonable to hold that he must have at least started earning at the rate of Rs 150 p.m. as stated by him after the lapse of one year from the date he was enrolled as an advocate.
### Response:
1
### Explanation:
7. Appellant contended and in our opinion rightly that deduction at the rate of Rs 150 p.m. should not commence from the very day he was enrolled as an advocate because it is common knowledge that no one earns from the first day and therefore a reasonable period must be set apart from finding a footing in the profession. The contention deserves consideration. The appellant himself has been rather loose in his statement. It would be reasonable to hold that he must have at least started earning at the rate of Rs 150 p.m. as stated by him after the lapse of one year from the date he was enrolled as an advocate.
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RAKESH KUMAR Vs. THE STATE OF BIHAR & ORS | It is open to the Court to grant extension and extension was granted by communication dated 20.02.2020 to join by April, 2020. The question that appears for our consideration is whether this is a case where, in the absence of a statutory prescription, in the circumstances which are projected to exist, the respondent-High Court should have permitted the appellant to join. The delay beyond April, 2020, consists of seven weeks. It is not a case where there is a complete dearth of any explanation by the candidate. According to the appellant, the appellant was in Nagpur at the time when lockdown No. 1 was declared. The fact that COVID 19 was prevalent in the country and travel restrictions were put in place is a matter of which the Court can take judicial notice. The appellant has purported to produce material along with the representations is another aspect which cannot be ignored. The impugned order insofar as it proceeds on the basis that no material was produced along with the representation does not appear to be correct. 18. It is no doubt true that there is no absolute right with the candidate to insist that he should be permitted to join beyond the date. We reiterate that this would be so even in the absence of statutory rule. We are dealing with services of judicial officer who is expected to undergo training. In fact, there are certain deadlines which have been fixed by this Court in litigation relating to appointment/recruitment of judicial officers. So, it is not as if we can describe the orders of the High Court refusing to permit the appellant to join as a perverse or totally illegal decision. 19. Though, it is true, as noticed, that there is no absolute right, we cannot also be oblivious to certain facts. 20. There is non-advertence to relevant material produced by the appellant. The appellant admittedly belongs to a marginalized section of society. The High Court permitted extension to the appellant to join till April, 2020, on the basis of the request made by the appellant which included his request pointing out the need to have a surgery of his father conducted in Chennai and the other issue relating to the pregnancy of his wife. While it is true that, again, we are not oblivious of the fact that first representation made by the appellant is on 08.06.2020, even though deadline set by the High Court was that the appellant should join in April, 2020, we cannot ignore the reality, namely, that restrictions imposed consequent upon COVID 19 enveloping the nation were rather severe and stringent. Travel both by Air and by train was prohibited. It is not in dispute that flights were not permitted till 25.05.2020. It is not disputed that there were restrictions in the matter of travel by train and priority was given to migrants. Likewise, it is not in the region of dispute that unlock 1.0 came into effect from 01.06.2020. There were other restrictions in the form of pass to be secured for traveling outside the district where the person was located. 21. We would think this is not a case where the appellant was taking aid of a false case. There was considerable confusion also about what a person could do and what a person could not do during the time of the lockdown. It was an unprecedented situation which affected the nation to which Nagpur was certainly not impervious. We would think that, in the facts of this case, besides noticing also the fact that the appellant hailing from a marginalized community has been recruited and has been appointed to the judicial services of the State, we should take a view which conduces to justice in a larger sense and for his entry and for his continuation in service. This is apart from the claim being supported with material which was placed but apparently not considered. 22. The question would, however, then arises as to what would be the consequence of allowing the appellant to join and continue in service. 23. Mr. Shoeb Alam, learned counsel for the appellant, on the previous date of hearing, pointed out that the appellant will file an undertaking that he would not claim right to seniority except upon joining and he will undergo fresh training with the next batch. 24. The written undertaking on affidavit is today before us. Therein, the appellant has agreed to waive his claim to seniority and backwages: UNDERTAKING ON AFFIDAVIT I, Rakesh Kumar, aged about 33 years (Male), S/o Shri Chandra Sekhar Paswan, R/o Village -Kashipur, P.S. - Samastipur Town, District-Samastipur (Bihar), presently at Samastipur do hereby solemnly swear and affirm as under: 1. I state that I am the Petitioner in the accompanying Special Leave Petition. 2. I state that in the event an order is passed by this Honble Court to reinstate my service as Civil Judge (Junior Division) by setting aside or otherwise interfering with the impugned Order dated 26-10-2021 passed by the Honble High Court of Judicature at Patna in CWJC No. NO.3835 of 2021, I undertake as under: a. That I waive my claim for seniority and back wages from the date I offered to join as Civil Judge (Junior Division) at Biraul, Darbhanga from i.e. 08-06-2020 till the time of actual joining in service. b. That I agree to undergo training with the next available batch. c. That I will not claim any benefit contrary to the present undertaking at any time in the future. 3. That I am also ready and willing to undergo training with the next batch of recruits. 25. We are also persuaded in this case to interfere with the impugned order and grant relief to the appellant having regard to the terms of the undertaking which has been reduced to writing by the appellant and what is more contained in the affidavit made by the appellant which would appear to show his willingness and readiness to serve as a judicial officer. | 1[ds]16. We would notice in the first place that there is no statutory provision which declares or commands that beyond a certain point of time, a selected candidate cannot be permitted to join. There is no provision pressed before us which is in the form of a statutory prescription. In other words, there is no law which would support the cancellation of the candidature of the selected candidate if he seeks to join beyond a particular point of time.17. Undoubtedly, the matter appears to be governed by the terms of the notification. It is open to the Court to grant extension and extension was granted by communication dated 20.02.2020 to join by April, 2020. The question that appears for our consideration is whether this is a case where, in the absence of a statutory prescription, in the circumstances which are projected to exist, the respondent-High Court should have permitted the appellant to join. The delay beyond April, 2020, consists of seven weeks. It is not a case where there is a complete dearth of any explanation by the candidate. According to the appellant, the appellant was in Nagpur at the time when lockdown No. 1 was declared. The fact that COVID 19 was prevalent in the country and travel restrictions were put in place is a matter of which the Court can take judicial notice. The appellant has purported to produce material along with the representations is another aspect which cannot be ignored. The impugned order insofar as it proceeds on the basis that no material was produced along with the representation does not appear to be correct.18. It is no doubt true that there is no absolute right with the candidate to insist that he should be permitted to join beyond the date. We reiterate that this would be so even in the absence of statutory rule. We are dealing with services of judicial officer who is expected to undergo training. In fact, there are certain deadlines which have been fixed by this Court in litigation relating to appointment/recruitment of judicial officers. So, it is not as if we can describe the orders of the High Court refusing to permit the appellant to join as a perverse or totally illegal decision.19. Though, it is true, as noticed, that there is no absolute right, we cannot also be oblivious to certain facts.20. There is non-advertence to relevant material produced by the appellant. The appellant admittedly belongs to a marginalized section of society. The High Court permitted extension to the appellant to join till April, 2020, on the basis of the request made by the appellant which included his request pointing out the need to have a surgery of his father conducted in Chennai and the other issue relating to the pregnancy of his wife. While it is true that, again, we are not oblivious of the fact that first representation made by the appellant is on 08.06.2020, even though deadline set by the High Court was that the appellant should join in April, 2020, we cannot ignore the reality, namely, that restrictions imposed consequent upon COVID 19 enveloping the nation were rather severe and stringent. Travel both by Air and by train was prohibited. It is not in dispute that flights were not permitted till 25.05.2020. It is not disputed that there were restrictions in the matter of travel by train and priority was given to migrants. Likewise, it is not in the region of dispute that unlock 1.0 came into effect from 01.06.2020. There were other restrictions in the form of pass to be secured for traveling outside the district where the person was located.21. We would think this is not a case where the appellant was taking aid of a false case. There was considerable confusion also about what a person could do and what a person could not do during the time of the lockdown. It was an unprecedented situation which affected the nation to which Nagpur was certainly not impervious. We would think that, in the facts of this case, besides noticing also the fact that the appellant hailing from a marginalized community has been recruited and has been appointed to the judicial services of the State, we should take a view which conduces to justice in a larger sense and for his entry and for his continuation in service. This is apart from the claim being supported with material which was placed but apparently not considered.25. We are also persuaded in this case to interfere with the impugned order and grant relief to the appellant having regard to the terms of the undertaking which has been reduced to writing by the appellant and what is more contained in the affidavit made by the appellant which would appear to show his willingness and readiness to serve as a judicial officer. | 1 | 3,588 | 876 | ### 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:
It is open to the Court to grant extension and extension was granted by communication dated 20.02.2020 to join by April, 2020. The question that appears for our consideration is whether this is a case where, in the absence of a statutory prescription, in the circumstances which are projected to exist, the respondent-High Court should have permitted the appellant to join. The delay beyond April, 2020, consists of seven weeks. It is not a case where there is a complete dearth of any explanation by the candidate. According to the appellant, the appellant was in Nagpur at the time when lockdown No. 1 was declared. The fact that COVID 19 was prevalent in the country and travel restrictions were put in place is a matter of which the Court can take judicial notice. The appellant has purported to produce material along with the representations is another aspect which cannot be ignored. The impugned order insofar as it proceeds on the basis that no material was produced along with the representation does not appear to be correct. 18. It is no doubt true that there is no absolute right with the candidate to insist that he should be permitted to join beyond the date. We reiterate that this would be so even in the absence of statutory rule. We are dealing with services of judicial officer who is expected to undergo training. In fact, there are certain deadlines which have been fixed by this Court in litigation relating to appointment/recruitment of judicial officers. So, it is not as if we can describe the orders of the High Court refusing to permit the appellant to join as a perverse or totally illegal decision. 19. Though, it is true, as noticed, that there is no absolute right, we cannot also be oblivious to certain facts. 20. There is non-advertence to relevant material produced by the appellant. The appellant admittedly belongs to a marginalized section of society. The High Court permitted extension to the appellant to join till April, 2020, on the basis of the request made by the appellant which included his request pointing out the need to have a surgery of his father conducted in Chennai and the other issue relating to the pregnancy of his wife. While it is true that, again, we are not oblivious of the fact that first representation made by the appellant is on 08.06.2020, even though deadline set by the High Court was that the appellant should join in April, 2020, we cannot ignore the reality, namely, that restrictions imposed consequent upon COVID 19 enveloping the nation were rather severe and stringent. Travel both by Air and by train was prohibited. It is not in dispute that flights were not permitted till 25.05.2020. It is not disputed that there were restrictions in the matter of travel by train and priority was given to migrants. Likewise, it is not in the region of dispute that unlock 1.0 came into effect from 01.06.2020. There were other restrictions in the form of pass to be secured for traveling outside the district where the person was located. 21. We would think this is not a case where the appellant was taking aid of a false case. There was considerable confusion also about what a person could do and what a person could not do during the time of the lockdown. It was an unprecedented situation which affected the nation to which Nagpur was certainly not impervious. We would think that, in the facts of this case, besides noticing also the fact that the appellant hailing from a marginalized community has been recruited and has been appointed to the judicial services of the State, we should take a view which conduces to justice in a larger sense and for his entry and for his continuation in service. This is apart from the claim being supported with material which was placed but apparently not considered. 22. The question would, however, then arises as to what would be the consequence of allowing the appellant to join and continue in service. 23. Mr. Shoeb Alam, learned counsel for the appellant, on the previous date of hearing, pointed out that the appellant will file an undertaking that he would not claim right to seniority except upon joining and he will undergo fresh training with the next batch. 24. The written undertaking on affidavit is today before us. Therein, the appellant has agreed to waive his claim to seniority and backwages: UNDERTAKING ON AFFIDAVIT I, Rakesh Kumar, aged about 33 years (Male), S/o Shri Chandra Sekhar Paswan, R/o Village -Kashipur, P.S. - Samastipur Town, District-Samastipur (Bihar), presently at Samastipur do hereby solemnly swear and affirm as under: 1. I state that I am the Petitioner in the accompanying Special Leave Petition. 2. I state that in the event an order is passed by this Honble Court to reinstate my service as Civil Judge (Junior Division) by setting aside or otherwise interfering with the impugned Order dated 26-10-2021 passed by the Honble High Court of Judicature at Patna in CWJC No. NO.3835 of 2021, I undertake as under: a. That I waive my claim for seniority and back wages from the date I offered to join as Civil Judge (Junior Division) at Biraul, Darbhanga from i.e. 08-06-2020 till the time of actual joining in service. b. That I agree to undergo training with the next available batch. c. That I will not claim any benefit contrary to the present undertaking at any time in the future. 3. That I am also ready and willing to undergo training with the next batch of recruits. 25. We are also persuaded in this case to interfere with the impugned order and grant relief to the appellant having regard to the terms of the undertaking which has been reduced to writing by the appellant and what is more contained in the affidavit made by the appellant which would appear to show his willingness and readiness to serve as a judicial officer.
### Response:
1
### Explanation:
16. We would notice in the first place that there is no statutory provision which declares or commands that beyond a certain point of time, a selected candidate cannot be permitted to join. There is no provision pressed before us which is in the form of a statutory prescription. In other words, there is no law which would support the cancellation of the candidature of the selected candidate if he seeks to join beyond a particular point of time.17. Undoubtedly, the matter appears to be governed by the terms of the notification. It is open to the Court to grant extension and extension was granted by communication dated 20.02.2020 to join by April, 2020. The question that appears for our consideration is whether this is a case where, in the absence of a statutory prescription, in the circumstances which are projected to exist, the respondent-High Court should have permitted the appellant to join. The delay beyond April, 2020, consists of seven weeks. It is not a case where there is a complete dearth of any explanation by the candidate. According to the appellant, the appellant was in Nagpur at the time when lockdown No. 1 was declared. The fact that COVID 19 was prevalent in the country and travel restrictions were put in place is a matter of which the Court can take judicial notice. The appellant has purported to produce material along with the representations is another aspect which cannot be ignored. The impugned order insofar as it proceeds on the basis that no material was produced along with the representation does not appear to be correct.18. It is no doubt true that there is no absolute right with the candidate to insist that he should be permitted to join beyond the date. We reiterate that this would be so even in the absence of statutory rule. We are dealing with services of judicial officer who is expected to undergo training. In fact, there are certain deadlines which have been fixed by this Court in litigation relating to appointment/recruitment of judicial officers. So, it is not as if we can describe the orders of the High Court refusing to permit the appellant to join as a perverse or totally illegal decision.19. Though, it is true, as noticed, that there is no absolute right, we cannot also be oblivious to certain facts.20. There is non-advertence to relevant material produced by the appellant. The appellant admittedly belongs to a marginalized section of society. The High Court permitted extension to the appellant to join till April, 2020, on the basis of the request made by the appellant which included his request pointing out the need to have a surgery of his father conducted in Chennai and the other issue relating to the pregnancy of his wife. While it is true that, again, we are not oblivious of the fact that first representation made by the appellant is on 08.06.2020, even though deadline set by the High Court was that the appellant should join in April, 2020, we cannot ignore the reality, namely, that restrictions imposed consequent upon COVID 19 enveloping the nation were rather severe and stringent. Travel both by Air and by train was prohibited. It is not in dispute that flights were not permitted till 25.05.2020. It is not disputed that there were restrictions in the matter of travel by train and priority was given to migrants. Likewise, it is not in the region of dispute that unlock 1.0 came into effect from 01.06.2020. There were other restrictions in the form of pass to be secured for traveling outside the district where the person was located.21. We would think this is not a case where the appellant was taking aid of a false case. There was considerable confusion also about what a person could do and what a person could not do during the time of the lockdown. It was an unprecedented situation which affected the nation to which Nagpur was certainly not impervious. We would think that, in the facts of this case, besides noticing also the fact that the appellant hailing from a marginalized community has been recruited and has been appointed to the judicial services of the State, we should take a view which conduces to justice in a larger sense and for his entry and for his continuation in service. This is apart from the claim being supported with material which was placed but apparently not considered.25. We are also persuaded in this case to interfere with the impugned order and grant relief to the appellant having regard to the terms of the undertaking which has been reduced to writing by the appellant and what is more contained in the affidavit made by the appellant which would appear to show his willingness and readiness to serve as a judicial officer.
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